exv4w1






Exhibit 4.1




 





DR PEPPER SNAPPLE GROUP, INC.




and




WELLS FARGO BANK, N.A.,

as Trustee




 





INDENTURE




Dated as of                     




SENIOR DEBT SECURITIES




 















 





TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE	 	 	1	 
	Section 1.1.
	 	Definitions	 	 	1	 
	Section 1.2.
	 	Other Definitions	 	 	7	 
	Section 1.3.
	 	Incorporation by Reference of Trust Indenture Act	 	 	7	 
	Section 1.4.
	 	Rules of Construction	 	 	8	 
	 
	 	 	 	 	 	 
	ARTICLE II THE SECURITIES	 	 	8	 
	Section 2.1.
	 	Form, Dating and Terms	 	 	8	 
	Section 2.2.
	 	Denominations	 	 	12	 
	Section 2.3.
	 	Forms Generally	 	 	12	 
	Section 2.4.
	 	Execution, Authentication, Delivery and Dating	 	 	12	 
	Section 2.5.
	 	Registrar and Paying Agent	 	 	14	 
	Section 2.6.
	 	Paying Agent to Hold Money in Trust	 	 	14	 
	Section 2.7.
	 	Holder Lists	 	 	15	 
	Section 2.8.
	 	Transfer and Exchange	 	 	15	 
	Section 2.9.
	 	Mutilated, Destroyed, Lost or Wrongfully Taken Securities	 	 	16	 
	Section 2.10.
	 	Outstanding Securities	 	 	16	 
	Section 2.11.
	 	Cancellation	 	 	17	 
	Section 2.12.
	 	Payment of Interest; Defaulted Interest	 	 	17	 
	Section 2.13.
	 	Temporary Securities	 	 	18	 
	Section 2.14.
	 	Persons Deemed Owners	 	 	19	 
	Section 2.15.
	 	Computation of Interest	 	 	19	 
	Section 2.16.
	 	Global Securities; Book-Entry Provisions	 	 	19	 
	Section 2.17.
	 	CUSIP Numbers, Etc	 	 	21	 
	Section 2.18.
	 	Original Issue Discount and Foreign-Currency Denominated Securities	 	 	21	 
	 
	 	 	 	 	 	 
	ARTICLE III COVENANTS	 	 	22	 
	Section 3.1.
	 	Payment of Securities	 	 	22	 
	Section 3.2.
	 	Reports	 	 	22	 
	Section 3.3.
	 	Maintenance of Office or Agency	 	 	22	 
	Section 3.4.
	 	Corporate Existence	 	 	23	 
	Section 3.5.
	 	Compliance Certificate	 	 	23	 
	Section 3.6.
	 	Statement by Officers as to Default	 	 	23	 
	Section 3.7.
	 	Additional Amounts	 	 	23	 
	 
	 	 	 	 	 	 
	ARTICLE IV SUCCESSORS	 	 	24	 
	Section 4.1.
	 	Merger, Consolidation or Sale of Assets	 	 	24	 
	 
	 	 	 	 	 	 
	ARTICLE V REDEMPTION OF SECURITIES	 	 	25	 
	Section 5.1.
	 	Applicability of Article	 	 	25	 
	Section 5.2.
	 	Election to Redeem; Notice to Trustee	 	 	25	 
	Section 5.3.
	 	Selection by Trustee of Securities to Be Redeemed	 	 	25	 






i









 






	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	Section 5.4.
	 	Notice of Redemption	 	 	25	 
	Section 5.5.
	 	Deposit of Redemption Price	 	 	27	 
	Section 5.6.
	 	Securities Payable on Redemption Date	 	 	27	 
	Section 5.7.
	 	Securities Redeemed in Part	 	 	27	 
	 
	 	 	 	 	 	 
	ARTICLE VI DEFAULTS AND REMEDIES	 	 	28	 
	Section 6.1.
	 	Events of Default	 	 	28	 
	Section 6.2.
	 	Acceleration	 	 	29	 
	Section 6.3.
	 	Other Remedies	 	 	30	 
	Section 6.4.
	 	Waiver of Past Defaults	 	 	30	 
	Section 6.5.
	 	Control by Majority	 	 	30	 
	Section 6.6.
	 	Limitation on Suits	 	 	31	 
	Section 6.7.
	 	Rights of Holders to Receive Payment	 	 	31	 
	Section 6.8.
	 	Collection Suit by Trustee	 	 	31	 
	Section 6.9.
	 	Trustee May File Proofs of Claim	 	 	31	 
	Section 6.10.
	 	Priorities	 	 	32	 
	Section 6.11.
	 	Undertaking for Costs	 	 	32	 
	 
	 	 	 	 	 	 
	ARTICLE VII TRUSTEE	 	 	33	 
	Section 7.1.
	 	Duties of Trustee	 	 	33	 
	Section 7.2.
	 	Rights of Trustee	 	 	34	 
	Section 7.3.
	 	Individual Rights of Trustee	 	 	35	 
	Section 7.4.
	 	Trustee’s Disclaimer	 	 	35	 
	Section 7.5.
	 	Notice of Defaults	 	 	36	 
	Section 7.6.
	 	Reports by Trustee to Holders	 	 	36	 
	Section 7.7.
	 	Compensation and Indemnity	 	 	36	 
	Section 7.8.
	 	Replacement of Trustee	 	 	37	 
	Section 7.9.
	 	Successor Trustee by Merger	 	 	38	 
	Section 7.10.
	 	Eligibility; Disqualification	 	 	39	 
	Section 7.11.
	 	Preferential Collection of Claims Against Company	 	 	39	 
	 
	 	 	 	 	 	 
	ARTICLE VIII LEGAL DEFEASANCE AND COVENANT DEFEASANCE	 	 	39	 
	Section 8.1.
	 	Option to Effect Legal Defeasance or Covenant Defeasance	 	 	39	 
	Section 8.2.
	 	Legal Defeasance and Discharge	 	 	39	 
	Section 8.3.
	 	Covenant Defeasance	 	 	40	 
	Section 8.4.
	 	Conditions to Legal or Covenant Defeasance	 	 	40	 
	Section 8.5.
	 	Deposited Cash and Government Securities to be Held in Trust; Other Miscellaneous Provisions 	 	 	 42	 
	Section 8.6.
	 	Repayment to Company	 	 	42	 
	Section 8.7.
	 	Reinstatement	 	 	43	 
	 
	 	 	 	 	 	 
	ARTICLE IX AMENDMENTS	 	 	43	 
	Section 9.1.
	 	Without Consent of Holders	 	 	43	 
	Section 9.2.
	 	With Consent of Holders	 	 	44	 
	Section 9.3.
	 	Compliance with Trust Indenture Act	 	 	46	 
	Section 9.4.
	 	Revocation and Effect of Consents and Waivers	 	 	46	 
	Section 9.5.
	 	Notation on or Exchange of Securities	 	 	47	 






ii









 






	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	Section 9.6.
	 	Trustee To Sign Amendments	 	 	47	 
	 
	 	 	 	 	 	 
	ARTICLE X SECURITIES GUARANTEE	 	 	47	 
	Section 10.1.
	 	Securities Guarantee	 	 	47	 
	Section 10.2.
	 	Execution and Delivery of Securities Guarantees; Notations of Guarantees 	 	 	49	 
	Section 10.3.
	 	Limitation on Liability; Termination, Release and Discharge	 	 	50	 
	Section 10.4.
	 	Limitation of Guarantors’ Liability	 	 	50	 
	Section 10.5.
	 	Contribution	 	 	51	 

	Section 10.6.
	 	Guarantors May Consolidate, etc., on Certain Terms.
	 	 	51	 
	 
	 	 	 	 	 	 
	ARTICLE XI SATISFACTION AND DISCHARGE	 	 	51	 
	Section 11.1.
	 	Satisfaction and Discharge	 	 	51	 
	 
	 	 	 	 	 	 
	ARTICLE XII MISCELLANEOUS	 	 	52	 
	Section 12.1.
	 	Trust Indenture Act Controls	 	 	52	 
	Section 12.2.
	 	Notices	 	 	52	 
	Section 12.3.
	 	Communication by Holders with other Holders	 	 	53	 
	Section 12.4.
	 	Certificate and Opinion as to Conditions Precedent	 	 	53	 
	Section 12.5.
	 	Statements Required in Certificate or Opinion	 	 	54	 
	Section 12.6.
	 	When Securities Disregarded 	 	 	54	 
	Section 12.7.
	 	Rules by Trustee, Paying Agent and Registrar	 	 	54	 
	Section 12.8.
	 	Legal Holidays	 	 	54	 
	Section 12.9.
	 	GOVERNING LAW	 	 	55	 
	Section 12.10.
	 	No Recourse Against Others	 	 	55	 
	Section 12.11.
	 	Successors	 	 	55	 
	Section 12.12.
	 	Multiple Originals	 	 	55	 
	Section 12.13.
	 	Severability	 	 	55	 
	Section 12.14.
	 	No Adverse Interpretation of Other Agreements	 	 	55	 
	Section 12.15.
	 	Table of Contents; Headings	 	 	55	 






iii









 






CROSS-REFERENCE TABLE




	 	 	 
	TIA	 	Indenture
	Section	 	Section
	310(a)(1)
	 	7.10
	(a)(2)
	 	7.10
	(a)(3)
	 	N.A.
	(a)(4)
	 	N.A.
	(b)
	 	7.8; 7.10
	(c)
	 	N.A.
	311(a)
	 	7.11
	(b)
	 	7.11
	(c)
	 	N.A.
	312(a)
	 	2.7
	(b)
	 	12.3
	(c)
	 	12.3
	313(a)
	 	7.6
	(b)(1)
	 	7.6
	(b)(2)
	 	7.6
	(c)
	 	7.6
	(d)
	 	7.6
	314(a)
	 	3.2; 3.5; 12.2
	(b)
	 	N.A.
	(c)(1)
	 	12.4
	(c)(2)
	 	12.4
	(c)(3)
	 	N.A.
	(d)
	 	N.A.
	(e)
	 	12.5
	315(a)
	 	7.1
	(b)
	 	7.5; 12.2
	(c)
	 	7.1
	(d)
	 	7.1
	(e)
	 	6.11
	316(a)(last sentence)
	 	12.6
	(a)(1)(A)
	 	6.5
	(a)(1)(B)
	 	6.4
	(a)(2)
	 	N.A.
	(b)
	 	6.7
	317(a)(1)
	 	6.8
	(a)(2)
	 	6.9
	(b)
	 	2.6
	318(a)
	 	12.1








 




			
	N.A. means Not Applicable.




Note: This Cross-Reference Table shall not, for any purpose, be deemed to be part of this
Indenture.




iv









 








     THIS
INDENTURE, dated as of
                    ,
is entered into by and between DR PEPPER SNAPPLE
GROUP, INC., a Delaware corporation (the “Company”), and WELLS FARGO BANK, N.A., a national
banking association, as trustee (the “Trustee”).



W I T N E S S E T H :




     WHEREAS,
the Company may from time to time duly authorize the issue of its unsecured
debentures, notes or other evidences of indebtedness to be issued in one or more series (the
“Securities”) up to such principal amount or amounts as may from time to time be authorized
in accordance with the terms of this Indenture;



     WHEREAS, the Company has duly authorized the execution and delivery of this Indenture to
provide, among other things, for the authentication, delivery and administration of the Securities;
and



     WHEREAS, all things necessary to make this Indenture a valid indenture and agreement according
to its terms have been done;



     NOW, THEREFORE:



     In consideration of the premises and the purchases of the Securities by the holders thereof,
the Company and the Trustee mutually covenant and agree for the equal and proportionate benefit of
the respective holders from time to time of the Securities as follows:



ARTICLE I




Definitions and Incorporation by Reference




     Section 1.1. Definitions.



     “Additional Amounts” means any additional amounts required by the express terms of a
Security or by or pursuant to a Board Resolution, under circumstances specified therein or pursuant
thereto, to be paid by the Company with respect to certain taxes, assessments or other governmental
charges imposed on certain Holders and that are owing to those Holders.



     “Adjusted Net Assets” of a Guarantor at any date means the amount by which the fair
value of the properties and assets of such Guarantor exceeds the total amount of liabilities,
including, without limitation, contingent liabilities (after giving effect to all other fixed and
contingent liabilities incurred or assumed on such date), but excluding liabilities under its
Securities Guarantee, of such Guarantor at such date.



     “Affiliate” of any specified Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with such specified Person.
For purposes of this definition, “control,” as used with respect to any Person, means the
possession, directly or indirectly, of the power to direct or cause the direction of the management
or policies of such Person, whether through the ownership of voting securities, by agreement or



1









 







otherwise. For purposes of this definition, the terms “controlling,” “controlled by” and
“under common control with” have correlative meanings.



     “Bankruptcy Law” means Title 11, United States Code or any similar Federal or
state law for the relief of debtors.



     “Board of Directors” means:




	 	(1)	 	with respect to a corporation, the board of directors of the corporation or any
committee thereof duly authorized to act on behalf of such board;
	 
	 	(2)	 	with respect to a partnership, the board of directors of the general partner of
the partnership;
	 
	 	(3)	 	with respect to a limited liability company, the managing member or members or
any controlling committee of managing members thereof; and
	 
	 	(4)	 	with respect to any other Person, the board or committee of such Person serving
a similar function.





     “Board Resolution” means a copy of a resolution certified by the Secretary or an
Assistant Secretary of the applicable Person to have been duly adopted by the Board of Directors of
such Person and to be in full force and effect on the date of such certification, and delivered to
the Trustee.



     “Business Day” means each day that is not a Saturday, Sunday or other day on which
banking institutions in New York, New York or another place of payment are authorized or required
by law to close.



     “Capital Stock” means:




	 	(1)	 	in the case of a corporation, corporate stock;
	 
	 	(2)	 	in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
corporate stock;
	 
	 	(3)	 	in the case of a partnership or limited liability company, partnership
interests (whether general or limited) or membership interests; and
	 
	 	(4)	 	any other interest or participation that confers on a Person the right to
receive a share of the profits and losses of, or distributions of assets of, the
issuing Person,
	 
	 	 	 	but excluding from all of the foregoing any debt securities convertible into Capital
Stock, whether or not such debt securities include any right of participation with
Capital Stock.





     “Code” means the Internal Revenue Code of 1986, as amended.



2









 





     “Company” has the meaning ascribed to it in the first introductory paragraph of this
Indenture.



     “Company Order” and “Company Request” mean, respectively, a written order or
request signed in the name of the Company by two Officers of the Company, and delivered to the
Trustee.



     “Custodian” means any receiver, trustee, assignee, liquidator, custodian or similar
official under any Bankruptcy Law.



     “Default” means any event that is, or with the passage of time or the giving of notice
or both would be, an Event of Default.



     “Depositary” means, with respect to the Securities of any series issuable or issued in
whole or in part in global form, the Person specified pursuant to Section 2.1 hereof as the
initial Depositary with respect to the Securities of that series, until a successor shall have been
appointed and become such pursuant to the applicable provision of this Indenture, and thereafter
“Depositary” shall mean or include that successor.



     “Dollar” or “$” means a dollar or other equivalent unit in such coin or currency of
the United States as at the time shall be legal tender for the payment of public and private debt.



     “DTC” means The Depository Trust Company, its nominees and their respective successors
and assigns, or such other depositary institution hereinafter appointed by the Company.



     “Equity Interests” means Capital Stock and all warrants, options or other rights to
acquire Capital Stock (but excluding any debt security that is convertible into, or exchangeable
for, Capital Stock).




     “Exchange Act” means the Securities Exchange Act of 1934, as amended.



     “GAAP” means generally accepted accounting principles set forth in the opinions and
pronouncements of the Public Company Accounting Oversight Board (United States) and statements and
pronouncements of the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting profession, which are
in effect as of the date of determination.



     “Global Securities” of any series means a Security of that series that is issued in
global form in the name of the Depositary with respect thereto or its nominee.



3









 





     “Government Securities” means direct obligations of, or obligations guaranteed by, the
United States of America for the payment of which obligations or guarantee the full faith and
credit of the United States of America is pledged.



     “Guarantee” means a guarantee other than by endorsement of negotiable instruments for
collection in the ordinary course of business, direct or indirect, in any manner including, without
limitation, by way of a pledge of assets or through letters of credit or reimbursement agreements
in respect thereof, of all or any part of any indebtedness (whether arising by virtue of
partnership arrangements, or by agreements to keep-well, to maintain financial statement conditions
or otherwise), or entered into for purposes of assuring in any other manner the obligee of such
indebtedness of the payment thereof or to protect such obligee against loss in respect thereof (in
whole or in part).



     “Guarantors” means, with respect to any series of Securities, the Person or Persons,
if any, named in accordance with Section 2.1(9) as the “Guarantors” with respect to such
series and which shall have entered into a supplemental indenture pursuant to Section
9.1(10) hereof whereby such Person shall have executed a Securities Guarantee under this
Indenture with respect to such series of Securities until, as to any particular Guarantor, a
successor Person shall have become such pursuant to the applicable provisions of this Indenture,
and thereafter any reference to such “Guarantor” shall mean such successor Person. If a series of
Securities does not have any Guarantors, all references in this Indenture to Guarantors shall have
no effect and shall be ignored with respect to such Securities.



     “Holder” means a Person in whose name a Security is registered in the applicable
Security Register.



     “Indenture” means this Indenture as amended or supplemented from time to time by one
or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental indenture, the provisions
of the Trust Indenture Act that are deemed to be a part of and govern this instrument and any such
supplemental indenture, respectively. The term “Indenture” shall also include the terms of any
particular series of Securities and of any Securities Guarantees thereof established as
contemplated by Section 2.1.



     “Interest Payment Date,” when used with respect to any Security, shall have the
meaning assigned to that term in the Security as contemplated by Section 2.1.




     “Maturity” means, with respect to any Security, the date on which the principal of
that Security or an installment of principal becomes due and payable as therein or herein provided,
whether at the Stated Maturity thereof, or by declaration of acceleration, call for redemption or
otherwise.



     “Non-U.S. Person” means a person who is not a U.S. person, as defined in Regulation S.



4









 





     “Obligations” means any principal, interest, penalties, fees, indemnifications,
reimbursements, damages and other liabilities payable under the documentation governing any
indebtedness.



     “Officer” means the Chairman of the Board, the President, the Chief Financial Officer,
any Vice President, the Treasurer, any Assistant Treasurer, the Secretary or any Assistant
Secretary of the Company.



     “Officers’ Certificate” means a certificate signed by two Officers, at least one of
whom shall be the President, the Chief Financial Officer or the Treasurer.



     “Opinion of Counsel” means a written opinion from legal counsel who is reasonably
acceptable to the Trustee. The counsel may be an employee of or counsel to the Company or the
Trustee.



     “Original Issue Discount Security” means any Security that provides for an amount less
than the principal amount thereof to be due and payable on a declaration of acceleration of the
Maturity thereof pursuant to Section 6.2.



     “Person” means any individual, corporation, partnership, joint venture, association,
joint-stock company, trust, unincorporated organization, limited liability company or government or
other entity.




     “Redemption Date” when used with respect to any Security to be redeemed, in whole or
in part, means the date fixed for such redemption by or pursuant to this Indenture.



     “Redemption Price” means, with respect to any Security to be redeemed, the price at
which it is to be redeemed pursuant to this Indenture.



     “SEC” means the Securities and Exchange Commission.



     “Securities” has the meaning ascribed to it in the second introductory paragraph of
this Indenture.



     “Securities Act” means the Securities Act of 1933, as amended.



     “Securities Guarantee” means the Guarantee by each Guarantor of the Company’s
Obligations under this Indenture and any series of Securities.



     “Securities Register” means the register of Securities, maintained by the Registrar,
pursuant to Section 2.5.



5









 





     “Security Custodian” means, with respect to Securities of a series issued in global
form, the Trustee for Securities of that series, as custodian with respect to the Securities of
that series, or any successor entity thereto.



     “Significant Subsidiary” means any Subsidiary that would be a “significant subsidiary”
as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act,
as such Regulation is in effect on the date of this Indenture.



     “Stated Maturity” means, with respect to any installment of interest or principal on
any series of indebtedness, the date on which the payment of interest or principal was scheduled to
be paid in the documentation governing such indebtedness as of the date of this Indenture, and will
not include any contingent obligations to repay, redeem or repurchase any such interest or
principal prior to the date originally scheduled for the payment thereof.



     “Subsidiary” of any specified Person means any corporation, association or other
business entity of which more than 50% of the total voting power of shares of Capital Stock
entitled (without regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly,
by such Person or one or more of the other Subsidiaries of that Person or a combination thereof.



     “TIA”
or “Trust Indenture Act,” except as otherwise
provided in Section 9.3, means the Trust Indenture Act of 1939 (15
U.S.C. §§ 77aaa 77bbbb), as in effect on the date
hereof.



     “Trust Officer” shall mean, when used with respect to the Trustee, any officer within
the corporate trust department of the Trustee, including any vice president, assistant vice
president, assistant secretary, assistant treasurer, trust officer or any other officer of the
Trustee who customarily performs functions similar to those performed by the Persons who at the
time shall be such officers, respectively, or to whom any corporate trust matter is referred
because of such person’s knowledge of and familiarity with the particular subject and who shall
have direct responsibility for the administration of this Indenture.



     “Trustee” means the Person named as such above until a successor replaces it in
accordance with the applicable provisions of this Indenture, and thereafter “Trustee” means each
Person who is then a Trustee hereunder, and if at any time there is more than one such Person,
“Trustee” as used with respect to the Securities of any series means the Trustee with respect to
Securities of that series.



6









 





     “Voting Stock” of any specified Person as of any date means the Capital Stock of such
Person that is at the time entitled to vote in the election of the Board of Directors of such
Person.



     Section 1.2. Other Definitions.



	 	 	 	 	 
	 	 	Defined in
	Term	 	Section
	“Agent Members”
	 	 	2.16	 
	“Certificate of Destruction”
	 	 	2.11	 
	“Corporate Trust Office”
	 	 	3.3	 
	“Covenant Defeasance”
	 	 	8.3	 
	“Defaulted Interest”
	 	 	2.12	 
	“Event of Default”
	 	 	6.1	 
	“Exchange Rate”
	 	 	2.18	 
	“Funding Guarantor”
	 	 	10.5	 
	“Legal Defeasance”
	 	 	8.2	 
	“Legal Holiday”
	 	 	12.8	 
	“Notation of Guarantee”
	 	 	10.2	 
	“Paying Agent”
	 	 	2.5	 
	“protected purchaser”
	 	 	2.9	 
	“Registrar”
	 	 	2.5	 
	“Special Interest Payment Date”
	 	 	2.12	(a)
	“Special Record Date”
	 	 	2.12	(a)
	“Surviving Entity”
	 	 	4.1	 






     Section 1.3. Incorporation by Reference of Trust Indenture Act. This Indenture is subject to the mandatory
provisions of the TIA which are incorporated by
reference in and made a part of this Indenture. The following TIA terms have the following
meanings:



     “Commission” means the SEC.



7









 





     “indenture securities” means the Securities.



     “indenture security holder” means a Holder of a Security.



     “indenture to be qualified” means this Indenture.



     “indenture trustee” or “institutional trustee” means the Trustee.



     “obligor” on any series of Securities means the Company, any Guarantors and any other obligor
on such series of Securities.



     All other TIA terms used in this Indenture that are defined by the TIA, defined in the TIA by
reference to another statute or defined by SEC rules have the meanings assigned to them by such
definitions.



     Section 1.4. Rules of Construction. Unless the context otherwise requires:




     (1) a term has the meaning assigned to it;




     (2) an accounting term not otherwise defined has the meaning assigned to it in
accordance with GAAP;




     (3) “or” is not exclusive;




     (4) “including” means including without limitation;




     (5) words in the singular include the plural and words in the plural include
the singular;




     (6) the principal amount of any noninterest bearing or other discount security
at any date shall be the principal amount thereof that would be shown on a balance
sheet of the Company dated such date prepared in accordance with GAAP; and




     (7) provisions apply to successive events and transactions.



ARTICLE II




The Securities




     Section 2.1. Form, Dating and Terms.


     The aggregate principal amount of Securities that may be authenticated and delivered under
this Indenture is unlimited.


     The Securities may be issued in one or more series. There shall be established in or pursuant
to a Board Resolution, and set forth, or determined in the manner provided, in an Officers’
Certificate of the Company or in a Company Order, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any series:




8









 







     (1) the title of the Securities of the series (which shall distinguish the
Securities of the series from the Securities of all other series);




     (2) if there is to be a limit, the limit upon the aggregate principal amount of
the Securities of the series that may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the series
pursuant to Section 2.8, 2.9, 2.13, 2.16, 5.7 or 9.5 and except for any
Securities that, pursuant to Section 2.4 or 2.16, are deemed never to have
been authenticated and delivered hereunder); provided, however, that unless
otherwise provided in the terms of the series, the authorized aggregate principal
amount of such series may be increased before or after the issuance of any
Securities of the series by a Board Resolution (or action pursuant to a Board
Resolution) to such effect;




     (3) whether any Securities of the series are to be issuable initially in
temporary global form and whether any Securities of the series are to be issuable in
permanent global form, as Global Securities or otherwise, and, if so, whether
beneficial owners of interests in any such Global Security may exchange such
interests for Securities of such series and of like tenor of any authorized form and
denomination and the circumstances under which any such exchanges may occur, if
other than in the manner provided in Section 2.16, and the initial
Depositary and Security Custodian, if any, for any Global Security or Securities of
such series;




     (4) the manner in which any interest payable on a temporary Global Security on
any Interest Payment Date will be paid if other than in the manner provided in
Section 2.12;




     (5) the date or dates on which the principal of and premium (if any) on the
Securities of the series is payable or the method of determination thereof;




     (6) the rate or rates, or the method of determination thereof, at which the
Securities of the series shall bear interest, if any, whether and under what
circumstances Additional Amounts with respect to such Securities shall be payable,
the date or dates from which such interest shall accrue, the Interest Payment Dates
on which such interest shall be payable and the record date for the interest payable
on any Securities on any Interest Payment Date, or if other than provided herein,
the Person to whom any interest on Securities of the series shall be payable;




     (7) the place or places where, subject to the provisions of Section
3.3, the principal of, premium (if any) and interest on and any Additional
Amounts with respect to the Securities of the series shall be payable;




     (8) the period or periods within which, the price or prices (whether
denominated in cash, securities or otherwise) at which and the terms and



9









 







conditions
upon which Securities of the series may be redeemed, in whole or in part, at the
option of the Company, if the Company is to have that option, and the manner in
which the Company must exercise any such option, if different from those set forth
herein;




     (9) whether Securities of the series are entitled to the benefits of any
Securities Guarantee of any Guarantor pursuant to this Indenture, the identity of
any such Guarantors, whether Notations of such Securities Guarantees are to be
included on such Securities and any terms of such Securities Guarantee with respect
to the Securities of the series in addition to those set forth in Article X,
or any exceptions to or changes to those set forth in Article X;




     (10) the obligation, if any, of the Company to redeem, purchase or repay
Securities of the series pursuant to any sinking fund or analogous provisions or at
the option of a Holder thereof and the period or periods within which, the price or
prices (whether denominated in cash, securities or otherwise) at which and the terms
and conditions upon which Securities of the series shall be redeemed, purchased or
repaid in whole or in part pursuant to such obligation;




     (11)
if other than denominations of $1,000 and any integral multiple in
excess thereof,
the denomination in which any Securities of that series shall be issuable;




     (12) if other than Dollars, the currency or currencies (including composite
currencies) or the form, including equity securities, other debt securities
(including Securities), warrants or any other securities or property of the Company,
any Guarantor or any other Person, in which payment of the principal of, premium (if
any) and interest on and any Additional Amounts with respect to the Securities of
the series shall be payable;




     (13) if the principal of, premium (if any) or interest on or any Additional
Amounts with respect to the Securities of the series are to be payable, at the
election of the Company or a Holder thereof, in a currency or currencies (including
composite currencies) other than that in which the Securities are stated to be
payable, the currency or currencies (including composite currencies) in which
payment of the principal of, premium (if any) and interest on and any Additional
Amounts with respect to Securities of such series as to which such election is made
shall be payable, and the periods within which and the terms and conditions upon
which such election is to be made;




     (14) if the amount of payments of principal of, premium (if any) and interest
on and any Additional Amounts with respect to the Securities of the series
may be determined with reference to any commodities, currencies or indices,
values, rates or prices or any other index or formula, the manner in which such
amounts shall be determined;



10









 






     (15) if other than the entire principal amount thereof, the portion of the
principal amount of Securities of the series that shall be payable upon declaration
of acceleration of the Maturity thereof pursuant to Section 6.2;




     (16) any additional means of satisfaction and discharge of this Indenture and
any additional conditions or limitations to discharge with respect to Securities of
the series and the related Securities Guarantees, if any, pursuant to Article
VIII or any modifications of or deletions from such conditions or limitations;




     (17) any deletions or modifications of or additions to the Events of Default
set forth in Section 6.1 or covenants of the Company or any Guarantor set
forth in Article III pertaining to the Securities of the series;




     (18) any restrictions or other provisions with respect to the transfer or
exchange of Securities of the series, which may amend, supplement, modify or
supersede those contained in this Article II;




     (19) if the Securities of the series are to be convertible into or exchangeable
for capital stock, other debt securities (including Securities), warrants, other
equity securities or any other securities or property of the Company, any Guarantor
or any other Person, at the option of the Company or the Holder or upon the
occurrence of any condition or event, the terms and conditions for such conversion
or exchange;




     (20) if applicable, that the Securities of the series, in whole or any
specified part, shall not be defeasible pursuant to Section 8.2 or
Section 8.3 or both such Sections, and, if such Securities may be defeased,
in whole or in part, pursuant to either or both such Sections, any provisions to
permit a pledge of obligations other than Government Securities (or the
establishment of other arrangements) to satisfy the requirements of Section
8.4(1) for defeasance of such Securities and, if other than by a Board
Resolution of the Company, the manner in which any election by the Company to
defease such Securities shall be evidenced; and




     (21) any other terms of the series (which terms shall not be prohibited by the
provisions of this Indenture).



     All Securities of any one series shall be substantially identical except as to denomination
and except as may otherwise be provided in or pursuant to the Board Resolution referred to above
and (subject to Section 2.3) set forth, or determined in the manner provided, in the
Officers’ Certificate or Company Order referred to above or in any such indenture supplemental
hereto.



     If any of the terms of the series are established by action taken pursuant to a Board
Resolution, a copy of an appropriate record of such action, together with such Board Resolution,
shall be set forth in an Officers’ Certificate or certified by the Secretary or an Assistant
Secretary



11









 







of the Company and delivered to the Trustee at or prior to the delivery of the Officers’
Certificate or Company Order setting forth the terms of the series.



     Section 2.2. Denominations. The Securities of each series shall be issuable in such denominations as shall be specified as
contemplated by Section 2.1. In the absence of any such provisions with respect to the
Securities of any series, the Securities of such series denominated in Dollars shall be issuable in
denominations of $1,000 and any integral multiples thereof.



     Section 2.3. Forms Generally. The Securities of each series shall be in fully registered form and in substantially such form
or forms (including temporary or permanent global form) established by or pursuant to a Board
Resolution or in one or more indentures supplemental hereto. The Securities may have notations,
legends or endorsements required by law, securities exchange rule, the Company’s certificate of
incorporation, bylaws or other similar governing documents, agreements to which the Company is
subject, if any, or usage (provided that any such notation, legend or endorsement is in a form
acceptable to the Company). A copy of the Board Resolution establishing the form or forms of
Securities of any series shall be delivered to the Trustee at or prior to the delivery of the
Company Order contemplated by Section 2.4 for the authentication and delivery of such
Securities.



     The definitive Securities of each series shall be printed, lithographed or engraved on steel
engraved borders or may be produced in any other manner, all as determined by the Officers
executing such Securities, as evidenced by their execution thereof.



     The Trustee’s certificate of authentication shall be in substantially the following form:



     “This is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.



	 	 	 	 	 
	 	Wells Fargo Bank, N.A., as Trustee

 	 
	 	By:  	 	 
	 	 	Authorized Officer” 	 
	 	 	 	 
	 




     Section 2.4. Execution, Authentication, Delivery and Dating. Two Officers of the Company shall sign the Securities on behalf of the Company and, with respect
to any related Securities Guarantees, Notations of Guarantee as to which are to be endorsed on such
Securities, an Officer of each Guarantor shall sign the Notation of Guarantee on behalf of such
Guarantor, in each case by manual or facsimile signature.



     If an Officer of the Company or a Guarantor whose signature is on a Security no longer holds
that office at the time the Security or the Notation of Guarantee, as the case may be, is
authenticated, the Security or Notation of Guarantee shall be valid nevertheless.



     A Security shall not be entitled to any benefit under this Indenture or any related Securities
Guarantees or be valid or obligatory for any purpose until authenticated by the manual signature of
an authorized signatory of the Trustee, which signature shall be conclusive evidence that the
Security has been authenticated under this Indenture. Notwithstanding the foregoing, if any
Security has been authenticated and delivered hereunder but never issued and sold by the



12









 







Company,
and the Company delivers such Security to the Trustee for cancellation as provided in Section
2.11, together with a written statement (which need not comply with Section 12.5 and
need not be accompanied by an Opinion of Counsel) stating that such Security has never been issued
and sold by the Company, for all purposes of this Indenture such Security shall be deemed never to
have been authenticated and delivered hereunder and shall never be entitled to the benefits of this
Indenture or the related Securities Guarantees.



     At any time and from time to time after the execution and delivery of this Indenture, the
Company may deliver Securities of any series executed by the Company (and, if applicable, the
Notation of Guarantee for such series executed by each Guarantor with respect to such series) to
the Trustee for authentication, and the Trustee shall authenticate and deliver such Securities for
original issue upon a Company Order for the authentication and delivery of such Securities or
pursuant to such procedures acceptable to the Trustee as may be specified from time to time by
Company Order. Such order shall specify the amount of the Securities to be authenticated, the date
on which the original issue of Securities is to be authenticated, the name or names of the initial
Holder or Holders and any other terms of the Securities of such series not otherwise determined. If
provided for in such procedures, such Company Order may authorize (1) authentication and delivery
of Securities of such series for original issue from time to time, with certain terms (including,
without limitation, the Maturity dates or dates, original issue date or dates and interest rate or
rates) that differ from Security to Security and (2) may authorize authentication and delivery
pursuant to oral or electronic instructions from the Company or its duly authorized agent, which
instructions shall be promptly confirmed in writing.



     If the form or terms of the Securities of the series have been established in or pursuant to
one or more Board Resolutions as permitted by Section 2.1, in authenticating such
Securities, and accepting the additional responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive (in addition to the Company Order referred to
above and the other documents required by Section 12.4), and (subject to Section
7.1) shall be fully protected in relying upon:



     (a) an Officers’ Certificate of the Company setting forth the Board Resolution and, if
applicable, an appropriate record of any action taken pursuant thereto, as contemplated by the last
paragraph of Section 2.1; and



     (b) an Opinion of Counsel to the effect that:



          (i) the form of such Securities has been established in conformity with the provisions of this
Indenture;




          (ii) the terms of such Securities have been established in conformity with the provisions of
this Indenture; and




          (iii) that such Securities and the related Securities Guarantees, if any, when authenticated
and delivered by the Trustee and issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and binding obligations of the Company
and the Guarantors, respectively, enforceable against the Company and the Guarantors, respectively,
in accordance with their respective terms, except as the



13









 






enforceability thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or transfer or
other similar laws in effect from time to time affecting the rights of creditors generally, and the
application of general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).




     If all the Securities of any series are not to be issued at one time, it shall not be
necessary to deliver an Officers’ Certificate and Opinion of Counsel at the time of issuance of
each such Security, but such Officers’ Certificate and Opinion of Counsel shall be delivered at or
before the time of issuance of the first Security of the series to be issued.



     The Trustee shall not be required to authenticate such Securities if the issuance of such
Securities pursuant to this Indenture would affect the Trustee’s own rights, duties or immunities
under the Securities and this Indenture or otherwise in a manner not reasonably acceptable to the
Trustee.



     The Trustee may appoint an authenticating agent acceptable to the Company to authenticate
Securities. Unless limited by the terms of such appointment, any such authenticating agent may
authenticate Securities whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An authenticating agent has
the same rights as an Agent to deal with the Company, any Guarantor or an Affiliate of the Company
or any Guarantor.



     Each Security shall be dated the date of its authentication.



     Section 2.5. Registrar and Paying Agent. The Company shall maintain an office or agency for each series of Securities where Securities of
such series may be presented for registration of transfer or for exchange (the “Registrar”)
and an office or agency where Securities of such series may be presented for payment (the
“Paying Agent”). The Company shall cause each of the Registrar and the Paying Agent to
maintain an office or agency in the United States of America. The Registrar shall keep a register
of the Securities and of their transfer and exchange (the “Securities Register”). The
Company may have one or more co-registrars and one or more additional paying agents. The term
“Paying Agent” includes any additional paying agent.



     The Company shall enter into an appropriate agency agreement with any Registrar, Paying Agent
or co-registrar not a party to this Indenture, which shall incorporate the terms of the TIA. The
agreement shall implement the provisions of this Indenture that relate to such agent. The Company
shall notify the Trustee of the name and address of each such agent. If the Company fails to
maintain a Registrar or Paying Agent, the Trustee shall act as such and shall be
entitled to appropriate compensation therefor pursuant to Section 7.7. The Company or
any of its Subsidiaries may act as Paying Agent, Registrar, co-registrar or transfer agent.



     The Company initially appoints the Trustee as Registrar and Paying Agent for the Securities.



     Section 2.6. Paying Agent to Hold Money in Trust. By no later than 11:00 a.m. (New York City time) on the date on which any amount or Additional
Amounts, if any, in respect of any Security is due and payable, the Company shall deposit with the
Paying Agent a sum



14









 







sufficient in immediately available funds to pay such amount or Additional
Amounts, if any, when due. The Company shall require each Paying Agent (other than the Trustee) to
agree in writing that such Paying Agent shall hold in trust for the benefit of the applicable
Holders or the Trustee all money held by such Paying Agent for the payment of such amount and
Additional Amounts, if any, on the applicable Securities and shall notify the Trustee in writing of
any default by the Company or any Guarantor in making any such payment. If the Company or a
Subsidiary acts as Paying Agent, it shall segregate the money held by it as Paying Agent and hold
it as a separate trust fund. The Company at any time may require a Paying Agent (other than the
Trustee) to pay all money held by it to the Trustee and to account for any funds disbursed by such
Paying Agent. Upon complying with this Section 2.6, the Paying Agent (if other than the
Company or a Subsidiary) shall have no further liability for the money delivered to the Trustee.
Upon any bankruptcy, reorganization or similar proceeding with respect to the Company, the Trustee
shall serve as Paying Agent for the Securities.



     Section 2.7. Holder Lists. The Trustee shall preserve in as current a form as is reasonably practicable the most recent
list available to it of the names and addresses of Holders. If the Trustee is not the Registrar
with respect to a series of Securities, or to the extent otherwise required under the TIA, the
Company shall furnish to the Trustee, in writing at least five Business Days before each interest
payment date with respect to such series of Securities and at such other times as the Trustee may
request in writing, a list in such form and as of such date as the Trustee may reasonably require
of the names and addresses of Holders of such series.



     Section 2.8. Transfer and Exchange.


     Except as set forth in Section 2.16 or as may be provided pursuant to Section
2.1, when Securities of any series are presented to the Registrar with the request to register
the transfer of those Securities or to exchange those Securities for an equal principal amount of
Securities of the same series of like tenor and of other authorized denominations, the Registrar
shall register the transfer or make the exchange as requested if its requirements and the
requirements of this Indenture for those transactions are met; provided, however, that the
Securities presented or surrendered for registration of transfer or exchange shall be duly endorsed
or accompanied by a written instruction of transfer in form reasonably satisfactory to the
Registrar duly executed by the Holder thereof or by his attorney, duly authorized in writing, on
which instruction the Registrar can rely.

     To permit registrations of transfers and exchanges, the Company shall execute Securities (and,
if applicable, each Guarantor with respect to such series shall execute the Notation of Guarantee
for such series) and the Trustee shall authenticate such Securities at the Registrar’s written
request and submission of the Securities (other than Global Securities). No service charge shall
be made to a Holder for any registration of transfer or exchange (except as otherwise expressly
permitted herein), but the Company may require payment of a sum sufficient to cover any transfer
tax or similar governmental charge payable in connection therewith (other than such transfer tax or
similar governmental charge payable on exchanges pursuant to Section 2.13, 5.7 or 9.5).
The Trustee shall authenticate Securities in accordance with the provisions of Section 2.4.
Notwithstanding any other provisions of this Indenture to the contrary, the Company shall not be
required to register the transfer or exchange of (a) any Security selected for redemption in whole
or in part pursuant to Article V, except the unredeemed portion of any Security being



15









 







redeemed in part or (b) any Security during the period beginning 15 Business Days before the
mailing of notice of any offer to repurchase Securities of the series required pursuant to the
terms thereof or of redemption of Securities of a series to be redeemed and ending at the close of
business on the date of mailing.



     Section 2.9. Mutilated, Destroyed, Lost or Wrongfully Taken Securities. If a mutilated Security is surrendered to the Registrar or if the Holder of a Security claims
that the Security has been lost, destroyed or wrongfully taken, the Company shall issue and the
Trustee shall authenticate a replacement Security with respect to such series if the requirements
of Section 8-405 of the Uniform Commercial Code are met, such that the Holder (a) satisfies the
Company or the Trustee within a reasonable time after such Holder has notice of such loss,
destruction or wrongful taking and the Registrar does not register a transfer prior to receiving
such notification, (b) makes such request to the Company or Trustee prior to the Security being
acquired by a protected purchaser as defined in Section 8-303 of the Uniform Commercial Code (a
“protected purchaser”) and (c) satisfies any other reasonable requirements of the Trustee.
If required by the Trustee or the Company, such Holder shall furnish an indemnity bond sufficient
in the judgment of the Company and the Trustee to protect the Company, the Trustee, the Paying
Agent, the Registrar and any co-registrar from any loss which any of them may suffer if a Security
is replaced, and, in the absence of notice to the Company or the Trustee that such Security has
been acquired by a protected purchaser, the Company shall execute and, upon a Company Order, the
Trustee shall authenticate and make available for delivery, in exchange for any such mutilated
Security or in lieu of any such destroyed, lost or wrongfully taken Security, a new Security of
like tenor and principal amount, bearing a number not contemporaneously outstanding.



     In case any such mutilated, destroyed, lost or wrongfully taken Security has become or is
about to become due and payable, the Company in its discretion may, instead of issuing a new
Security of such series, pay such Security.



     Upon the issuance of any new Security under this Section 2.9, the Company may require
the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto and any other expenses (including the fees and expenses of the Trustee) in
connection therewith.



     Every new Security issued pursuant to this Section in lieu of any mutilated, destroyed, lost
or wrongfully taken Security shall constitute an original additional contractual obligation of the
Company, any Guarantor (if applicable) and any other obligor upon the Securities of such series,
whether or not the mutilated, destroyed, lost or wrongfully taken Security shall be at any time
enforceable by anyone, and shall be entitled to all benefits of this Indenture equally and
proportionately with any and all other Securities of such series duly issued hereunder.



     The provisions of this Section 2.9 are exclusive and shall preclude (to the extent
lawful) all other rights and remedies with respect to the replacement or payment of mutilated,
destroyed, lost or wrongfully taken Securities.



     Section 2.10. Outstanding Securities. Securities outstanding at any time are all Securities authenticated by the Trustee except for
those canceled by it, those delivered to it for cancellation and those described in this
Section 2.10 as not outstanding. A Security ceases to be



16









 







outstanding in the event the
Company or a Subsidiary of the Company holds the Security, provided, however, that (i) for purposes
of determining which are outstanding for consent or voting purposes hereunder, the provisions of
Section 12.6 shall apply and (ii) in determining whether the Trustee shall be protected in
making a determination whether the Holders of the requisite principal amount of outstanding
Securities are present at a meeting of Holders of Securities for quorum purposes or have consented
to or voted in favor of any request, demand, authorization, direction, notice, consent, waiver,
amendment or modification hereunder, or relying upon any such quorum, consent or vote, only
Securities which a Trust Officer of the Trustee actually knows to be held by the Company or an
Affiliate of the Company shall not be considered outstanding.



     If a Security is replaced pursuant to Section 2.9, it ceases to be outstanding unless
the Trustee and the Company receive proof satisfactory to them that the replaced Security is held
by a protected purchaser.



     If the Paying Agent segregates and holds in trust, in accordance with this Indenture, on a
Redemption Date or maturity date money sufficient to pay all amounts and Additional Amounts, if
any, payable on that date with respect to the Securities (or portions thereof) to be redeemed or
maturing, as the case may be, and the Paying Agent is not prohibited from paying such money to the
Holders on that date pursuant to the terms of this Indenture, then on and after that date such
Securities (or portions thereof) cease to be outstanding and interest on them ceases to accrue.



     Section 2.11. Cancellation. The Company at any time may deliver Securities to the Trustee for cancellation. The Registrar
and the Paying Agent shall forward to the Trustee any Securities surrendered to them for
registration of transfer, exchange or payment. The Trustee and no one else shall cancel all
Securities surrendered for registration of transfer, exchange, payment or cancellation and destroy
such Securities in accordance with its internal policies, including delivery of a certificate (a
“Certificate of Destruction”) describing such Securities disposed (subject to the record
retention requirements of the Exchange Act). The Company may not issue new Securities to replace
Securities it has paid or delivered to the Trustee for cancellation for any reason other than in
connection with a transfer or exchange.



     Section 2.12. Payment of Interest; Defaulted Interest. Unless otherwise provided as contemplated by Section 2.1 with respect to the Securities
of any series, interest and Additional Amounts, if any, on any Security of such series which is
payable, and is punctually paid or duly provided for, on any interest payment date shall be paid to
the Person in whose name such Security (or one or more predecessor Securities) is registered at the
close of business on the regular record date for such interest at the office or agency of the
Company maintained for such purpose pursuant to Section 2.8.



     Unless otherwise provided as contemplated by Section 2.1 with respect to the
Securities of any series, any interest and Additional Amounts, if any, on any Security of such
series which is payable, but is not paid when the same becomes due and payable and such nonpayment
continues for a period of 30 days shall forthwith cease to be payable to the Holder on the regular
record date, and such defaulted interest and (to the extent lawful) interest on such defaulted
interest at the rate provided for in the Securities therefor (such defaulted interest and interest



17









 







thereon herein collectively called “Defaulted Interest”) shall be paid by the Company, at
its election in each case, as provided in clause (a) or (b) below:




     (a) The Company may elect to make payment of any Defaulted Interest to the Persons in
whose names the Securities (or their respective predecessor Securities) are registered at
the close of business on a Special Record Date (as defined below) for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The Company shall notify
the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each
Security and the date (not less than 30 days after such notice) of the proposed payment (the
“Special Interest Payment Date”), and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money when deposited to be
held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this
clause provided. Thereupon the Trustee shall fix a record date (the “Special Record
Date”) for the payment of such Defaulted Interest, which date shall be not more than 15
days and not less than 10 days prior to the Special Interest Payment Date and not less than
10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Company of such Special Record Date, and in the name and at the
expense of the Company, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date and Special Interest Payment Date therefor to be given
in the manner provided for in Section 12.2, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted Interest and the
Special Record Date and Special Interest Payment Date therefor having been so given, such
Defaulted Interest shall be paid on the Special Interest Payment Date to the Persons in
whose names the Securities (or their respective predecessor Securities) are registered at
the close of business on such Special Record Date and shall no longer be payable pursuant to
the following clause (b).




     (b) The Company may make payment of any Defaulted Interest in any other lawful manner
not inconsistent with the requirements of any securities exchange on which the Securities
may be listed, and upon such notice as may be required by such exchange, if, after notice
given by the Company to the Trustee of the proposed payment pursuant to this clause, such
manner of payment shall be deemed practicable by the Trustee.



     Subject to the foregoing provisions of this Section 2.12, each Security delivered
under this Indenture upon registration of, transfer of or in exchange for or in lieu of any other
Security shall carry the rights to interest and Additional Amounts, if any, each as accrued and
unpaid, and to accrue, which were carried by such other Security.



     Section 2.13. Temporary Securities. Until definitive Securities of any series are ready for delivery, the Company may prepare and
the Trustee shall authenticate temporary Securities of such series. Temporary Securities shall be
substantially in the form of definitive Securities, but may have variations that the Company
considers appropriate for temporary Securities. Without unreasonable delay, the Company shall
prepare and the Trustee shall authenticate definitive



18









 







Securities in exchange for temporary
Securities. Until so exchanged, the temporary Securities shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities.



     Section 2.14. Persons Deemed Owners. The Company, any Guarantors, the Trustee, any Agent and any authenticating agent may treat the
Person in whose name any Security is registered as the owner of that Security for the purpose of
receiving payments of principal of, premium (if any) or interest on, or any Additional Amounts with
respect to, that Security and for all other purposes. None of the Company, the Trustee, any Agent
or any authenticating agent shall be affected by any notice to the contrary.



     Section 2.15. Computation of Interest. Except as otherwise provided as contemplated by Section 2.1 with respect to the
Securities of any series, interest on the Securities shall be computed on the basis of a 360-day
year of twelve 30-day months.



     Section 2.16. Global Securities; Book-Entry Provisions. If Securities of a series are issuable in global form as a Global Security, as contemplated by
Section 2.1, then, notwithstanding clause (11) of Section 2.1 and the
provisions of Section 2.2, any such Global Security shall represent those of the
outstanding Securities of that series as shall be specified therein and may provide that it shall
represent the aggregate amount of outstanding Securities of that series from time to time endorsed
thereon and that the aggregate amount of outstanding Securities of that series represented thereby
may from time to time be reduced or increased, as appropriate, to reflect exchanges, transfers or
redemptions. Any endorsement of a Global Security to reflect the amount, or any increase or
decrease in the amount, of outstanding Securities of that series represented thereby shall be made
by the Trustee (i) in such manner and upon instructions given by such Person or Persons as shall be
specified in that Security or in a
Company Order to be delivered to the Trustee pursuant to Section 2.4 or (ii) otherwise in
accordance with written instructions or such other written form of instructions as is customary for
the Depositary for that Security, from that Depositary or its nominee on behalf of any Person
having a beneficial interest in that Global Security. Subject to the provisions of Section
2.4 and, if applicable, Section 2.13, the Trustee shall deliver and redeliver any
Security in permanent global form in the manner and upon instructions given by the Person or
Persons specified in that Security or in the applicable Company Order. With respect to the
Securities of any series that are represented by a Global Security, the Company and any Guarantors
authorize the execution and delivery by the Trustee of a letter of representations or other similar
agreement or instrument in the form customarily provided for by the Depositary appointed with
respect to that Global Security. Any Global Security may be deposited with the Depositary or its
nominee, or may remain in the custody of the Trustee or the Security Custodian therefor pursuant to
a FAST Balance Certificate Agreement or similar agreement between the Trustee and the Depositary.
If a Company Order has been, or simultaneously is, delivered, any instructions by the Company with
respect to endorsement or delivery or redelivery of a Security in global form shall be in writing
but need not comply with Section 12.5 and need not be accompanied by an Opinion of Counsel.



19









 





     Members of, or participants in, the Depositary (“Agent Members”) shall have no rights
under this Indenture with respect to any Global Security held on their behalf by the Depositary, or
the Trustee or the Security Custodian as its custodian, or under that Global Security, and the
Depositary may be treated by the Company, any Guarantor, the Trustee or the Security Custodian and
any agent of the Company, any Guarantor, the Trustee or the Security Custodian as the absolute
owner of that Global Security for all purposes whatsoever. Notwithstanding the foregoing, (i) the
registered holder of a Global Security of any series may grant proxies and otherwise authorize any
Person, including Agent Members and Persons that may hold interests through Agent Members, to take
any action that a Holder of Securities of that series is entitled to take under this Indenture or
the Securities of that series and (ii) nothing herein shall prevent the Company, any Guarantor, the
Trustee or the Security Custodian or any agent of the Company, any Guarantor, the Trustee, or the
Security Custodian from giving effect to any written certification, proxy or other authorization
furnished by the Depositary or shall impair, as between the Depositary and its Agent Members, the
operation of customary practices governing the exercise of the rights of a beneficial owner of any
Security.



     Notwithstanding Section 2.8, and except as otherwise provided pursuant to Section
2.1, transfers of a Global Security shall be limited to transfers of that Global Security in
whole, but not in part, to the Depositary, its successors or their respective nominees. Interests
of beneficial owners in a Global Security may be transferred in accordance with the rules and
procedures of the Depositary. Securities of any series shall be transferred to all beneficial
owners of a Global Security of that series in exchange for their beneficial interests in that
Global Security if, and only if, either (1) the Depositary notifies the Company that it is
unwilling or unable to continue as depositary for such Global Security or the Depositary ceases to
be a clearing agency registered under the Exchange Act, at a time when the Depositary is required
to be so registered in order to act as depositary, and, in either case, a successor depositary is
not appointed by the Company within 90 days of such notice, (2) the Company, at its option,
notifies the Trustee in writing that it elects to cause the issuance of definitive Securities or
(3) a Default or Event of Default has occurred and is continuing with respect to the Securities.



     In connection with any transfer of a portion of the beneficial interests in a Global Security
to beneficial owners pursuant to this Section 2.16, the Registrar shall reflect on its
books and records the date and a decrease in the principal amount of the Global Security in an
amount equal to the principal amount of the beneficial interest in the Global Security to be
transferred, and the Company shall execute and, if applicable, each Guarantor with respect to such
series shall execute the Notation of Guarantee relating to such Global Security, if any, and the
Trustee on receipt of a Company Order for the authentication and delivery of Securities shall
authenticate and deliver, one or more Securities of the same series of like tenor and amount.



     In connection with the transfer of all the beneficial interests in a Global Security of any
series to beneficial owners pursuant to this Section 2.16, the Global Security shall be
deemed to be surrendered to the Trustee for cancellation, and the Company shall execute, and the
Trustee shall authenticate and deliver, to each beneficial owner identified by the Depositary in
exchange for its beneficial interest in the Global Security, an equal aggregate principal amount of
Securities of that series of authorized denominations.



20









 





     Neither the Company, any Guarantor nor the Trustee will have any responsibility or liability
for any aspect of the records relating to, or payments made on account of, Securities by the
Depositary, or for maintaining, supervising or reviewing any records of the Depositary relating to
those Securities. Neither the Company, any Guarantor or the Trustee shall be liable for any delay
by the related Global Security Holder or the Depositary in identifying the beneficial owners, and
each such Person may conclusively rely on, and shall be protected in relying on, instructions from
that Global Security Holder or the Depositary for all purposes (including with respect to the
registration and delivery, and the respective principal amounts, of the Securities to be issued).



     The provisions of the last sentence of the third paragraph of Section 2.4 shall apply
to any Global Security if that Global Security was never issued and sold by the Company and the
Company or a Guarantor delivers to the Trustee the Global Security together with written
instructions (which need not comply with Section 12.5 and need not be accompanied by an
Opinion of Counsel) with regard to the cancellation or reduction in the principal amount of
Securities represented thereby, together with the written statement contemplated by the last
sentence of the third paragraph of Section 2.4.



     Notwithstanding the provisions of Sections 2.3 and 2.12, unless otherwise specified as
contemplated by Section 2.1 with respect to Securities of any series, payment of principal
of and premium (if any) and interest on and any Additional Amounts with respect to any Global
Security shall be made to the Person or Persons specified therein.



     Section 2.17. CUSIP Numbers, Etc. The Company in issuing the Securities of any series may use CUSIP numbers (if then generally in
use) and, if so, the Trustee shall use CUSIP, ISIN and Common Code numbers in notices of redemption
as a convenience to Holders of Securities of such series; provided, however, that any such notice
may state that no representation is made as to the correctness of such numbers either as printed on
the Securities of such series or as contained in any notice of a redemption and that reliance may
be placed only on the other identification numbers printed on the Securities of such
series, and any such redemption shall not be affected by any defect in or omission of such numbers.
The Company shall promptly notify the Trustee in writing of any change in the CUSIP, ISIN and
Common Code numbers.



     Section 2.18. Original Issue Discount and Foreign-Currency Denominated Securities. In determining whether the Holders of the required principal amount of outstanding Securities
have concurred in any direction, amendment, supplement, waiver or consent, unless otherwise
provided as contemplated by Section 2.1 with respect to the Securities of any series, (a)
the principal amount of an Original Issue Discount Security of such series shall be the principal
amount thereof that would be due and payable as of the date of that determination upon acceleration
of the Maturity thereof pursuant to Section 6.2, and (b) the principal amount of a Security
of such series denominated in a foreign currency shall be the Dollar equivalent, as determined by
the Company by reference to the noon buying rate in The City of New York for cable transfers for
that currency, as that rate is certified for customs purposes by the Federal Reserve Bank of New
York (the “Exchange Rate”) on the date of original issuance of that Security, of the
principal amount (or, in the case of an Original Issue Discount Security, the Dollar equivalent, as
determined by the Company by reference to the Exchange Rate on the date



21









 







of original issuance of
that Security, of the amount determined as provided in (a) above), of that Security.



ARTICLE III




Covenants




     Section 3.1. Payment of Securities. The Company shall promptly pay the principal of, premium, if any, on, and interest and
Additional Amounts, if any, on the Securities on the dates and in the manner provided in the
Securities and in this Indenture. Principal, premium, if any, interest and Additional Amounts, if
any, shall be considered paid on the date due if on such date the Trustee or the Paying Agent holds
in accordance with this Indenture immediately available funds sufficient to pay all principal,
premium and interest and Additional Amounts, if any, then due and the Trustee or Paying Agent, as
the case may be, is not prohibited from paying money to the Holders on that date pursuant to the
terms of this Indenture.



     The Company shall pay interest on overdue principal at the rate specified therefor in the
Securities, and it shall pay interest on overdue installments of interest at the same rate to the
extent lawful.



     Notwithstanding anything to the contrary contained in this Indenture, the Company may, to the
extent it is required to do so by law, deduct or withhold income or other similar taxes imposed by
the United States of America from principal or interest payments hereunder.



     Section 3.2.
Reports. So long as the Securities of any series are
outstanding the Company shall:




     (1) furnish to the Trustee, within 15 days after the Company files the same
with the SEC, copies of the annual reports and of the information, documents and
other reports (or copies of such portions of any of the foregoing as the SEC may
from time to time by rules and regulations prescribe) which the Company files with
the SEC pursuant to Section 13 or Section 15(d) of the Exchange
Act; and




     (2)
comply with the other provisions of TIA § 314(a).





     Section 3.3. Maintenance of Office or Agency. The Company will maintain in the United States of America an office or agency for any series of
Securities where such Securities may be presented or surrendered for payment, where, if applicable,
the Securities of that series may be surrendered for registration of transfer or exchange and where
notices and demands to or upon the Company in respect of the Securities of that series and this
Indenture may be served. The principal corporate trust office of the
Trustee at the address of the Trustee specified in Section 12.2
hereof (the “Corporate
Trust Office”) shall be such office or agency of the Company, unless the Company shall
designate and maintain some other office or agency for one or more of such purposes. The Company
will give prompt written



22









 







notice to the Trustee of any change in the location of any such office or
agency. If at any time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices
and demands may be made or served at the Corporate Trust Office of the Trustee, and the Company
hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and
demands.



     The Company may also from time to time designate one or more other offices or agencies where
the Securities of one or more series may be presented or surrendered for any or all such purposes
and may from time to time rescind any such designation; provided, however, that no such designation
or rescission shall in any manner relieve the Company of its obligation to maintain an office or
agency in the United States of America for such purposes. The Company will give prompt written
notice to the Trustee of any such designation or rescission and any change in the location of any
such other office or agency.



     Section 3.4. Corporate Existence. Subject to Article IV, the Company will do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence. This Section 3.4 shall
not prohibit or restrict the Company from converting into a different form of legal entity.



     Section 3.5. Compliance Certificate. The Company shall deliver to the Trustee within 120 days after the end of each fiscal year of
the Company an Officers’ Certificate stating that in the course of the performance by the signers
of their duties as Officers of the Company they would normally have knowledge of any Default or
Event of Default and whether or not the signers know of any Default or Event of Default that
occurred during such period. If they do, the certificate shall describe the Default or Event of
Default, its status and what action the Company is taking or proposes to take with respect thereto.
The Company also shall comply with TIA § 314(a)(4).



     Section 3.6. Statement by Officers as to Default. So long as Securities of any series are outstanding, the Company shall deliver to the Trustee,
as soon as possible and in any event within 5 Business Days after the Company becomes aware of the
occurrence of any Event of Default or Default with respect to that series an Officers’ Certificate
setting forth the details of such Event of Default or Default and the action which the Company is
taking or proposes to take in respect thereof.



     Section 3.7.
Additional Amounts. If the Securities of a series expressly provide for the payment of Additional Amounts, the Company
will pay to the Holder of any Security of that series Additional Amounts as expressly provided
therein. Whenever in this Indenture there is mentioned, in any context, the payment of the
principal of or any premium or interest on, or in respect of, any Security of any series or the net
proceeds received from the sale or exchange of any Security of any series, that mention shall be
deemed to include mention of the payment of Additional Amounts provided for in this Section
3.7 to the extent that, in that context, Additional Amounts are, were or would be payable in
respect thereof pursuant to the provisions of this Section 3.7, and express mention of the
payment of Additional Amounts (if applicable) in any provisions hereof shall not be construed as
excluding Additional Amounts in those provisions hereof where that express mention is not made.



23









 





     Unless otherwise provided pursuant to Section 2.1 with respect to Securities of any
series, if the Securities of a series provide for the payment of Additional Amounts, at least ten
days prior to the first Interest Payment Date with respect to that series of Securities (or if the
Securities of that series will not bear interest prior to Maturity, the first day on which a
payment of principal and any premium is made), and at least ten days prior to each date of payment
of principal and any premium or interest if there has been any change with respect to the matters
set forth in the below-mentioned Officers’ Certificate, the Company shall furnish the Trustee and
the Company’s principal Paying Agent or Paying Agents, if other than the Trustee, with an Officers’
Certificate instructing the Trustee and such Paying Agent or Paying Agents whether that payment of
principal of and any premium or interest on the Securities of that series shall be made to Holders
of Securities of that series who are United States Aliens without withholding for or on account of
any tax, assessment or other governmental charge described in the Securities of that series. If any
such withholding shall be required, then that Officers’ Certificate shall specify by country the
amount, if any, required to be withheld on those payments to those Holders of Securities, and the
Company will pay to that Paying Agent the Additional Amounts required by this Section. The Company
covenants to indemnify the Trustee and any Paying Agent for and to hold them harmless against any
loss, liability or expense reasonably incurred without negligence or bad faith on their part
arising out of or in connection with actions taken or omitted by any of them in reliance on any
Officers’ Certificate furnished pursuant to this Section 3.7.



ARTICLE IV




Successors




     Section 4.1. Merger, Consolidation or Sale of Assets. The Company shall not consolidate or combine with or merge with or into or, directly or
indirectly, sell, assign, convey, lease, transfer or otherwise dispose of all or substantially all
of its assets to any Person or Persons in a single transaction or through a series of transactions,
unless:




     (1) the Company shall be the successor or continuing Person or, if the Company
is not the successor or continuing Person, the resulting, surviving or transferee
Person (the “Surviving Entity”) is a company organized and existing under
the laws of the United States, any State thereof or the District of Columbia that
expressly assumes all of the Company’s obligations under the Securities and this
Indenture pursuant to a supplement hereto executed and delivered to the Trustee;




     (2) immediately after giving effect to such transaction or series of
transactions, no Event of Default has occurred and is continuing; and




     (3) the Company or the Surviving Entity shall have delivered to the Trustee an
Officers’ Certificate and Opinion of Counsel stating that the transaction or series
of transactions and any supplement hereto complies with the terms of this Indenture.



     If any consolidation or merger or any sale, assignment, conveyance, lease, transfer or other
disposition of all or substantially all of the Company’s assets occurs in accordance with the



24









 







terms
hereof, the Surviving Entity shall succeed to, and be substituted for, and may exercise every right
and power of the Company under this Indenture with the same effect as if such Surviving Entity had
been named as the Company. The Company shall (except in the case of a lease) be discharged from all
obligations and covenants under this Indenture and any Securities
issued hereunder, and may be liquidated and dissolved. Notwithstanding
the foregoing, the Company may merge or consolidate into or with any Subsidiary.



ARTICLE V




Redemption of Securities




     Section 5.1. Applicability of Article. Redemption of Securities at the election of the Company or otherwise, as permitted or required
by any provision of this Indenture, shall be made in accordance with such provision and (except as
otherwise provided as contemplated by Section 2.1 with respect to the Securities of any
series) this Article V.



     Section 5.2. Election to Redeem; Notice to Trustee. In case of any redemption of any series of Securities at the election of the Company, the
Company shall, upon not later than the earlier of the date that is 45 days prior to the Redemption
Date fixed by the Company or the date on which notice is given to the Holders (unless a shorter
notice shall be satisfactory to the Trustee), notify the Trustee of such Redemption Date and of the
principal amount of Securities to be redeemed and shall deliver to the Trustee such documentation
and records as shall enable the Trustee to select the Securities of such series to be redeemed
pursuant to Section 5.3.



     Section 5.3. Selection by Trustee of Securities to Be Redeemed. If fewer than all of the Securities of any series are to be redeemed at any time, the Trustee
will, subject to applicable law, select Securities of any series for redemption as follows:




     (1) if the Securities are listed on any national securities exchange, in
compliance with the requirements of the principal national securities exchange on
which the Securities are listed; or




     (2) if the Securities are not listed on any national securities exchange, on a
pro rata basis.



     Section 5.4. Notice of Redemption. Notice of redemption shall be given in the manner provided for in Section 12.2 not less
than 30 nor more than 60 days prior to the Redemption Date, to each Holder of Securities to be
redeemed, except that redemption notices may be mailed more than 60 days prior to a Redemption Date
if such notice is issued in connection with a defeasance of the Securities or a satisfaction and
discharge of this Indenture. Notice of any redemption may, at the Company’s discretion, be subject to one or more conditions precedent. The Trustee shall give
notice of redemption in the Company’s name and at the Company’s expense; provided, however, that
the Company shall deliver to the Trustee, at least 45 days prior to the Redemption Date (unless a
shorter notice shall be satisfactory to the Trustee), an Officers’ Certificate requesting that the
Trustee give such



25









 







notice at the Company’s expense and setting forth the information to be stated in
such notice as provided in the following items.



     All notices of redemption shall state:




     (1) the Redemption Date;




     (2) the redemption price and the amount of accrued interest and Additional
Amounts, if any, to the Redemption Date payable as provided in Section 5.6;




     (3) if less than all outstanding Securities are to be redeemed, the
identification of the particular Securities (or portion thereof) to be redeemed, as
well as the aggregate principal amount of Securities to be redeemed and the
aggregate principal amount of Securities to be outstanding after such partial
redemption;




     (4) in case any Securities are is to be redeemed in part only, the notice which
relates to such Securities shall state that on and after the Redemption Date, upon
surrender of such Securities, the Holder will receive, without charge, a new
Security or Securities of authorized denominations for the principal amount thereof
remaining unredeemed;




     (5) that on the Redemption Date the redemption price (and accrued interest, if
any, to the Redemption Date payable as provided in Section 5.6) will become
due and payable upon each such Security, or the portion thereof, to be redeemed,
and, unless the Company defaults in making the redemption payment, that interest and
Additional Amounts, if any, on Securities (or the portions thereof) called for
redemption will cease to accrue on and after said date;




     (6) the place or places where such Securities are to be surrendered for payment
of the Redemption Price and accrued interest, if any;




     (7) the name and address of the Paying Agent;




     (8) that Securities called for redemption (other than a Global Note) must be
surrendered to the Paying Agent to collect the redemption price;




     (9) the CUSIP, ISIN or Common Code number, and that no representation is made
as to the accuracy or correctness of the CUSIP, ISIN or Common Code number, if any,
listed in such notice or printed on the Securities; and




     (10) the section of this Indenture and the paragraph of the Securities pursuant
to which the Securities are to be redeemed.


Any redemption and notice thereof pursuant to this Indenture may, in the Company’s discretion, be
subject to the satisfaction of one or more conditions.



26









 







     Section 5.5. Deposit of Redemption Price. Not later than 11:00 a.m. New York time on the Redemption Date, the Company shall deposit with
the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate
and hold in trust as provided in Section 2.6) an amount of money sufficient to pay the
redemption price of, and accrued interest and Additional Amounts, if any, on, all the Securities
which are to be redeemed on that date.



     Section 5.6. Securities Payable on Redemption Date. Notice of redemption having been given as aforesaid, unless the notice of redemption is subject
to one or more conditions precedent which have not been satisfied, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the redemption price therein specified
(together with accrued and unpaid interest and Additional Amounts, if any, to the Redemption Date),
and from and after such date (unless the Company shall default in the payment of the redemption
price and accrued interest and Additional Amounts, if any) such
Securities shall cease to bear interest and Additional Amounts, if any. Upon surrender of any such
Security for redemption in accordance with said notice, such Security shall be paid by the Company
at the redemption price, together with accrued and unpaid interest and Additional Amounts, if any,
to the Redemption Date (subject to the rights of Holders of record on the relevant record date to
receive interest and Additional Amounts, if any, due on an interest payment date that is on or
prior to the Redemption Date).



     If any Security called for redemption shall not be so paid upon surrender thereof for
redemption, the principal (and premium, if any) shall, until paid, bear interest and Additional
Amounts, if any, from the Redemption Date at the rate borne by the Securities.



     Section 5.7. Securities Redeemed in Part. Any Security which is to be redeemed only in part (pursuant to the provisions of this
Article V) shall be surrendered at the office or agency of the Company maintained for such
purpose pursuant to Section 2.5 (with, if the Company or the Trustee so require, due
endorsement by, or a written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or such Holder’s attorney duly authorized in writing),
and the Company shall execute and, if applicable, each Guarantor with respect to such series shall
execute the Notation of Guarantee relating to such Security, if any, and the Trustee shall
authenticate and make available for delivery to the Holder of such Security at the expense of the
Company, a new Security or Securities, of any authorized denomination as requested by such Holder,
in an aggregate principal amount equal to and in exchange for the unredeemed portion of the
principal of the Security so surrendered, provided that each such new Security will be in a
principal amount of $1,000 or integral multiple thereof. No Securities of $1,000 or less may be
redeemed in part.



27









 





ARTICLE VI




Defaults and Remedies




     Section 6.1. Events of Default. Unless either inapplicable to a particular series or specifically deleted or modified in or
pursuant to the supplemental indenture or Board Resolution establishing such series of Securities
or in the form of Security for such series, an “Event of Default,” wherever used herein
with respect to Securities of any series, occurs if:




     (1) the Company defaults in the payment of any installment of interest on or
Additional Amounts, if any, with respect to any Security of that series under this
Indenture when due, continued for 30 days;




     (2) the Company defaults in the payment when due (at Stated Maturity, upon
redemption or otherwise) of the principal of, or premium, if any, on the Securities
of that series;




     (3) the Company fails to comply with the provisions of Section 4.1
hereof;




     (4) the Company fails for 90 days after notice to the Company by the Trustee or
the Holders of at least 25% in aggregate principal amount of the Securities of that
series then outstanding to comply with any of the other
covenants or agreements in this Indenture;



     (5) the Company fails to deposit any sinking fund payment, when due, in respect of any debt
security of that series;



     (6) (a) except as permitted by this Indenture, any Security Guarantee of that
series shall be held in any judicial proceeding to be unenforceable or invalid or
ceases for any reason to be in full force and effect or (b) any Guarantor of that
series, or any Person acting on behalf of any Guarantor, shall deny or disaffirm its
obligations under its Security Guarantee (except pursuant to the release or
termination of such Security Guarantee in accordance with this Indenture); and




     (7) (a) the Company or any Significant Subsidiary or a group of Subsidiaries
that, taken together (as of the latest available consolidated financial statements
of the Company), would constitute a Significant Subsidiary pursuant to or within the
meaning of any Bankruptcy Law:




	 	(i)	 	commences a voluntary case or proceeding;
	 
	 	(ii)	 	consents to the entry of a judgment, decree or
order for relief against it in an involuntary case or proceeding;
	 
	 	(iii)	 	consents to the appointment of a Custodian of
it or for any substantial part of its property;
	 
	 	(iv)	 	makes a general assignment for the benefit of
its creditors; or




28









 






	 	(v)	 	consents to or acquiesces in the institution of
a bankruptcy or an insolvency proceeding against it;






or takes any comparable action under any foreign laws relating to insolvency; or




	 	(b)	 	a court of competent jurisdiction enters an
order or decree under any Bankruptcy Law that:






	 	(i)	 	is for relief against the Company
or any Significant Subsidiary;
	 
	 	(ii)	 	appoints a Custodian of the
Company or any Significant Subsidiary; or
	 
	 	(iii)	 	orders the winding up or
liquidation of the Company or any Significant Subsidiary;






or any similar relief is granted under any foreign laws and the order, decree or
relief remains unstayed and in effect for 90 days.



     Section 6.2. Acceleration. Except as otherwise provided as contemplated by Section 2.1 with respect to the
Securities of such series, if any Event of Default with respect to any Securities of such series at
the time outstanding (other than those of the type described in
clause (7) of Section
6.1) occurs and is continuing, the Trustee may, and at the direction of the Holders of at least
25% in aggregate principal amount of outstanding Securities of such series shall, declare the
principal of all the Securities of that series, together with all accrued and unpaid interest and
Additional Amounts, if any, and premium, if any, to be due and payable immediately by notice in
writing to the Company and the Trustee specifying the respective Event of Default and that such
notice is a notice of acceleration, and the same shall become immediately due and payable.



     Except as otherwise provided as contemplated by Section 2.1 with respect to the
Securities of any series, in the case of an Event of Default with respect to such series specified
in clause (7) of Section 6.1 hereof, all outstanding Securities of such series
shall become due and payable immediately without further action or notice by the Trustee or the
Holders. Holders may not enforce this Indenture or the Securities except as provided in this
Indenture.



     Except as otherwise provided as contemplated by Section 2.1 with respect to the
Securities of any series, at any time after a declaration of acceleration with respect to the
Securities of such series, the Holders of a majority in principal amount of the Securities of that
series then outstanding (by notice to the Trustee) may, on behalf of the Holders of all the
Securities of that series, rescind and cancel such declaration and its consequences if:




     (1) the rescission would not conflict with any judgment or decree of a court of
competent jurisdiction;




     (2) all existing Defaults and Events of Default with respect to Securities of
that series have been cured or waived except nonpayment of



29









 







principal of
or interest
on the Securities of that series that has become due solely by reason of such
declaration of acceleration;




     (3) to the extent the payment of such interest is lawful, interest (at the same
rate specified in the Securities of such series) on overdue installments of interest
and Additional Amounts, if any, and overdue payments of principal which has become
due otherwise than by such declaration of acceleration has been paid;




     (4) the Company has paid the Trustee its reasonable compensation and reimbursed
the Trustee for its reasonable expenses, disbursements and advances; and




     (5) in the event of the cure or waiver of an Event of Default of the type
described in clause (7) of Section 6.1, the Trustee has received an
Officers’ Certificate and Opinion of Counsel that such Event of Default has been
cured or waived.



     Section 6.3. Other Remedies. If an Event of Default with respect to any series occurs and is continuing, the Trustee may
pursue any available remedy to collect the payment of principal of (or premium, if any) or interest
or Additional Amounts, if any, on the Securities of such series or to enforce the performance of
any provision of the Securities of such series or this Indenture with respect to such series.



     The Trustee may maintain a proceeding even if it does not possess any of the Securities or
does not produce any of them in the proceeding. A delay or omission by the Trustee or any Holder
in exercising any right or remedy accruing upon an Event of Default shall not impair the right or
remedy or constitute a waiver of or acquiescence in the Event of Default. No remedy is exclusive
of any other remedy. All available remedies are cumulative.



     Section 6.4. Waiver of Past Defaults. Except as otherwise provided as contemplated by Section 2.1 with respect to the
Securities of any series, the Holders of a majority in principal amount of the then outstanding
Securities of such series by notice to the Trustee may, on behalf of the Holders of all the
Securities of such series, (a) waive, by their consent (including, without limitation consents
obtained in connection with a purchase of, or tender offer or exchange offer for, Securities of
such series), an existing Default or Event of Default, with respect to such series and its
consequences or compliance with any provisions except (i) a Default or Event of Default in the
payment of the principal of, or premium, if any, or interest or Additional Amounts, if any, on a
Security of such series or (ii) a Default or Event of Default in respect of a provision that under
Section 9.2 cannot be amended without the consent of each Holder affected and (b) rescind
any such acceleration with respect to the Securities of such series and its consequences if
rescission would not conflict with any judgment or decree of a court of competent jurisdiction.
When a Default or Event of Default is waived, it is deemed cured, but no such waiver shall extend
to any subsequent or other Default or Event of Default or impair any consequent right.



     Section 6.5. Control by Majority. With respect to Securities of any series, the Holders of a majority in principal amount of the
outstanding Securities of such series may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or of



30









 







exercising any trust or power conferred on
the Trustee. However, the Trustee may refuse to follow any direction that conflicts with law or
this Indenture or, subject to Sections 7.1 and 7.2, that the Trustee determines is
unduly prejudicial to the rights of the other Holders or would involve the Trustee in personal
liability. Prior to taking any action hereunder, the Trustee shall be entitled to indemnification
satisfactory to it in its sole discretion against all losses and expenses caused by taking or not
taking such action.



     Section 6.6. Limitation on Suits. Subject to Section 6.7, a Holder of a Security of any series may not pursue any remedy
with respect to this Indenture or the Securities of such series or any related Securities
Guarantees unless:




     (1) such Holder has previously given to the Trustee written notice stating that
an Event of Default is continuing with respect to such series;




     (2) Holders of at least 25% in aggregate principal amount of the outstanding
Securities of such series have requested in writing that the Trustee pursue the
remedy;




     (3) such Holders have offered to the Trustee reasonable security or indemnity
against any loss, liability or expense;




     (4) the Trustee has not complied with such request within 60 days after receipt
of the request and the offer of security or indemnity; and




     (5) the Holders of a majority in principal amount of the outstanding Securities
of such series have not given the Trustee a direction that, in the opinion of the
Trustee, is inconsistent with such request within such 60-day period.



          A Holder may not use this Indenture to prejudice the rights of another Holder or to obtain a
preference or priority over another Holder.




     Section 6.7. Rights of Holders to Receive Payment. Notwithstanding any other provision of this Indenture (including, without limitation,
Section 6.6), the right of any Holder to receive payment of principal of, premium (if any)
or interest or Additional Amounts, if any, when due on the Securities held by such Holder, on or
after the respective due dates expressed in the Securities, or to bring suit for the enforcement of
any such payment on or after such respective dates, shall not be impaired or affected without the
consent of such Holder.



     Section 6.8. Collection Suit by Trustee. If an Event of Default specified in clauses (1) or (2) of Section 6.1 occurs and
is continuing with respect to Securities of any series, the Trustee may recover judgment in its own
name and as trustee of an express trust against the Company for the whole amount then due and owing
(together with interest on any unpaid interest to the extent lawful) with respect to such series
and the amounts provided for in Section 7.7.



     Section 6.9. Trustee May File Proofs of Claim. The Trustee may file such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee and the Holders allowed in any judicial
proceedings relative to the Company, its Subsidiaries or its or their respective creditors or
properties and, unless prohibited



31









 







by law or applicable regulations, may vote on behalf of the
Holders in any election of a trustee in bankruptcy or other Person performing similar functions,
and any Custodian in any such judicial proceeding is hereby authorized by each Holder to make
payments to the Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and its counsel,
and any other amounts due the Trustee under Section 7.7. To the extent that the payment of
any such compensation, expenses, disbursements and advances of the Trustee, its agents and counsel,
and any other amounts due the Trustee under Section 7.7 hereof out of the estate in any
such proceeding, shall be denied for any reason, payment of the same shall be secured by a Lien on,
and shall be paid out of, any and all distributions, dividends, money, securities and other
properties that the Holders may be entitled to receive in such proceeding whether in liquidation or
under any plan of reorganization or arrangement or otherwise. Nothing herein contained shall be
deemed to authorize the Trustee to authorize or consent to or accept on behalf of any Holder any
plan of reorganization, arrangement, adjustment or composition affecting the Securities or the
rights of any Holder, or to authorize the Trustee to vote in respect of the claim of any Holder in
any such proceeding.



     Section 6.10. Priorities. If the Trustee collects any money or property pursuant to this Article VI, it shall pay
out the money or property in the following order:



     FIRST: to the Trustee for amounts due under Section 7.7;



     SECOND: to Holders for amounts due and unpaid on the Securities in respect of which or for
the benefit of which such money has been collected, for principal, premium, if any, and interest
and Additional Amounts, if any, ratably, without preference or priority of any kind, according to
the amounts due and payable on such Securities for principal, premium, if any, and interest and
Additional Amounts, if any, respectively; and



     THIRD: to the Company or any Guarantors or to such other party as a court of competent
jurisdiction may direct.



     The Trustee may fix a record date and payment date for any payment to Holders pursuant to this
Section 6.10. At least 15 days before such record date, the Company shall mail to each
Holder and the Trustee a notice that states the record date, the payment date and amount to be
paid.



     Section 6.11. Undertaking for Costs. In any suit for the enforcement of any right or remedy under this Indenture or in any suit
against the Trustee for any action taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay the costs of the
suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’
fees, against any party litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section 6.11 does not apply to a suit
by the Trustee, a suit by the Company, a suit by a Holder pursuant to Section 6.7 or a suit
by Holders of more than 10% in outstanding principal amount of the Securities of any series.



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ARTICLE VII




Trustee




     Section 7.1. Duties of Trustee. (a) If an Event of Default has occurred and is continuing, the Trustee shall exercise the rights
and powers vested in it by this Indenture and use the same degree of care and skill in their
exercise as a prudent Person would exercise or use under the circumstances in the conduct of such
Person’s own affairs; provided that if an Event of Default occurs and is continuing, the Trustee
will be under no obligation to exercise the rights or powers under this Indenture at the request or
direction of any of the Holders unless such Holders have offered to the Trustee indemnity or
security against loss, liability or expense satisfactory to the Trustee in its sole discretion.




     (b) Except during the continuance of an Event of Default with respect to the Securities
of any series:




     (1) the Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture, and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations
shall be read into this Indenture against the Trustee; and




     (2) in the absence of bad faith on its part, the Trustee may conclusively rely,
as to the truth of the statements and the correctness of the opinions expressed
therein, upon certificates, opinions or orders furnished to the Trustee and
conforming to the requirements of this Indenture. However, in the case of any such
certificates or opinions which by any provisions hereof are specifically required to
be furnished to the Trustee, the Trustee shall examine such certificates and
opinions to determine whether or not they conform on their face to the requirements
of this Indenture (but need not confirm or investigate the accuracy of mathematical
calculations or other facts stated therein).




     (c) The Trustee may not be relieved from liability for its own negligent action, its
own negligent failure to act or its own willful misconduct, except that:




     (1) this paragraph does not limit the effect of paragraph (b) of this
Section 7.1;




     (2) the Trustee shall not be liable for any error of judgment made in good
faith by a Trust Officer unless it is proved that the Trustee was negligent in
ascertaining the pertinent facts; and




     (3) the Trustee shall not be liable with respect to any action it takes or
omits to take in good faith in accordance with a direction received by it pursuant
to Section 6.5.




     (d) Every provision of this Indenture that in any way relates to the Trustee is subject
to paragraphs (a), (b) and (c) of this Section 7.1.



33









 






     (e) The Trustee shall not be liable for interest on any money received by it except as
the Trustee may agree in writing with the Company.




     (f) Money held in trust by the Trustee need not be segregated from other funds except
to the extent required by law.




     (g) No provision of this Indenture shall require the Trustee to expend or risk its own
funds or otherwise incur financial liability in the performance of any of its duties
hereunder or in the exercise of any of its rights or powers.




     (h) Every provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject to the provisions of
this Section 7.1 and to the provisions of the TIA.




     (i) Unless otherwise specifically provided in this Indenture, any demand, request,
direction or notice from the Company shall be sufficient if signed by an Officer of the
Company.




     (j) The Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request or direction of any of the Holders unless such
Holders shall have offered to the Trustee reasonable security or indemnity satisfactory to
it against the costs, expenses (including reasonable attorneys’ fees and expenses) and
liabilities that might be incurred by it in compliance with such request or direction.



     Section 7.2. Rights of Trustee. Subject to Section 7.1:




     (a) The Trustee may conclusively rely on any document (whether in its original or
facsimile form) reasonably believed by it to be genuine and to have been signed or presented
by the proper person. The Trustee need not investigate any fact or matter stated in the
document.




     (b) Before the Trustee acts or refrains from acting, it may require an Officers’
Certificate and/or an Opinion of Counsel. The Trustee shall not be liable for any action it
takes or omits to take in good faith in reliance on an Officers’
Certificate and/or Opinion of
Counsel.




     (c) The Trustee may act through its attorneys and agents and shall not be responsible
for the misconduct or negligence of any agent appointed with due care.




     (d) The Trustee shall not be liable for any action it takes or omits to take in good
faith which it believes to be authorized or within the rights or
powers conferred upon it by this Indenture.




     (e) The Trustee may consult with counsel of its selection, and the advice or opinion of
counsel with respect to legal matters relating to this Indenture and the



34









 







Securities shall be
full and complete authorization and protection from liability in respect of any action
taken, omitted or suffered by it hereunder in good faith and in accordance with the advice
or opinion of such counsel.




     (f) The Trustee is not required to make any inquiry or investigation into facts or
matters stated in any document but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit and, if the Trustee
determines to make such further inquiry or investigation, it shall be entitled to examine
the books, records and premises of the Company.




     (g) The Trustee is not required to take notice or shall not be deemed to have notice of
any Default or Event of Default hereunder with respect to any series of Securities, unless a
Trust Officer of the Trustee has actual knowledge thereof or has received notice in writing
of such Default or Event of Default from the Company or the Holders of at least 25% in
aggregate principal amount of the Securities of such series then outstanding, and in the
absence of any such notice, the Trustee may conclusively assume that no such Default or
Event of Default exists.




     (h) The Trustee is not required to give any bond or surety with respect to the
performance of its duties or the exercise of its powers under this Indenture.




     (i) In the event the Trustee receives inconsistent or conflicting requests and
indemnity from two or more groups of Holders of Securities, each representing less than the
aggregate principal amount of Securities outstanding required to take any action thereunder,
the Trustee, in its sole discretion may determine what action, if any, shall be taken.




     (j) The Trustee’s immunities and protections from liability and its right to
indemnification in connection with the performance of its duties under this Indenture shall
extend to the Trustee’s officers, directors, agents, attorneys and employees. Such
immunities and protections and right to indemnification, together with the Trustee’s right
to compensation, shall survive the Trustee’s resignation or removal, the discharge of this
Indenture and final payments of the Securities.




     (k) The permissive right of the Trustee to take actions permitted by this Indenture
shall not be construed as an obligation or duty to do so.




     (l) The Trustee shall have no duty to inquire as to the performance of the Company’s covenants
herein.



     Section 7.3. Individual Rights of Trustee. The Trustee in its individual or any other capacity may become the owner or pledgee of
Securities and may otherwise deal with the Company or its Affiliates with the same rights it would
have if it were not Trustee. Any Paying Agent, Registrar, co-registrar or co-paying agent may do
the same with like rights. However, the Trustee must comply with Sections 7.10 and
7.11.



     Section 7.4. Trustee’s Disclaimer. The Trustee shall not be responsible for and makes no representation as to the validity or
adequacy of this Indenture or the Securities, it shall not be accountable for the Company’s use of
the proceeds from the Securities, and it shall not be responsible for any statement of the Company
in this Indenture or in any document issued in



35









 







connection with the sale of the Securities or in the
Securities other than the Trustee’s certificate of authentication.



     Section 7.5. Notice of Defaults. If a Default or Event of Default with respect to the Securities of any series occurs and is
continuing and if a Trust Officer has actual knowledge thereof, the Trustee shall mail to each
Holder of a Security of such series notice of the Default or Event of Default within 90 days after
it occurs, unless the Default was already cured or waived. Except in the case of a Default or Event of Default in payment of principal of, premium, if
any, or interest or Additional Amounts, if any, on any Security of any series, the Trustee may
withhold the notice if and so long as a committee of its trust officers in good faith determines
that withholding the notice is in the interests of Holders of such series.



     Section 7.6. Reports by Trustee to Holders. As promptly as practicable after each May 15 beginning with the May 15 following the date of
this Indenture and for so long as the Securities of any series remain outstanding, the Trustee
shall mail to each Holder of Securities of such series a brief report dated as of such reporting
date that complies with TIA § 313(a). The Trustee also shall comply with TIA § 313(b). The
Trustee shall also transmit by mail all reports required by TIA § 313(c).



     A copy of each report at the time of its mailing to Holders of Securities of any series shall
be filed with the SEC and each stock exchange (if any) on which the Securities of such series are
listed. The Company agrees to notify promptly the Trustee whenever the Securities of any series
become listed on any stock exchange and of any delisting thereof.



     Section 7.7. Compensation and Indemnity. The Company shall pay to the Trustee from time to time reasonable compensation for its
acceptance of this Indenture and services hereunder as the Company and the Trustee shall from time
to time agree in writing. The Trustee’s compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Company shall reimburse the Trustee upon
request for all reasonable out-of-pocket expenses incurred or made by it, including costs of
collection, costs of preparing and reviewing reports, certificates and other documents, costs of
preparation and mailing of notices to Holders, in addition to the compensation for its services.
Such expenses shall include the reasonable compensation and expenses, disbursements and advances of
the Trustee’s agents, counsel, accountants and experts. The Company shall indemnify the Trustee
against any and all losses, liabilities, damages, claims,
penalties, fines or expenses (including reasonable attorneys’
fees and expenses) (for purposes of this Section 7.7,
“losses”) incurred by it in
connection with the administration of this trust and the performance of its duties hereunder,
including the costs and expenses of enforcing this Indenture (including this Section 7.7)
and of defending itself against any claims (whether asserted by any Holder, the Company or
otherwise), except to the extent such losses may be attributable to
its negligence or bad faith. The Trustee shall notify the Company promptly of any claim for which it may seek
indemnity. Failure by the Trustee to so notify the Company shall not relieve the Company of its
obligations hereunder. The Company shall defend the claim and the Trustee shall provide reasonable
cooperation at the Company’s expense in the defense. The Trustee may have separate counsel and the
Company shall pay the fees and expenses of such counsel provided that the Company shall not be
required to pay such fees and expenses if it assumes the Trustee’s defense, and, in the reasonable
judgment of outside counsel to the Trustee, there is no conflict of interest between the Company
and the Trustee in connection with such defense. The Company shall not be under any



36









 







obligation to
pay for any written settlement without its consent, which consent shall not be unreasonably
delayed, conditioned or withheld. The Company need not reimburse any
expense incurred by the Trustee through the Trustee’s own willful misconduct,
gross negligence or bad faith.



     To secure the Company’s payment obligations in this Section 7.7, the Trustee shall
have a lien prior to the Securities on all money or property held or collected by the Trustee other
than money or property held in trust to pay principal of, interest and Additional Amounts, if any,
on particular Securities.



     The Company’s payment obligations pursuant to this Section 7.7 shall survive the
discharge of this Indenture, the resignation or removal of the Trustee and payment in full of the Securities. When the Trustee incurs expenses after the occurrence of a Default
specified in clause (7) of Section 6.1 with respect to the Company, the expenses are
intended to constitute expenses of administration under any Bankruptcy Law.



     Section 7.8. Replacement of Trustee. The Trustee may resign at any time by so notifying the Company. The Holders of a majority in
principal amount of the then outstanding Securities of any series may remove the Trustee with
respect to the Securities of such series by so notifying the Trustee and may appoint a successor
Trustee. The Company shall remove the Trustee if:




     (1) the Trustee fails to comply with Section 7.10;




     (2) the Trustee is adjudged bankrupt or insolvent;




     (3) a receiver or other public officer takes charge of the Trustee or its
property; or




     (4) the Trustee otherwise becomes incapable of acting.



     If the Trustee resigns or is removed by the Company or by the Holders of a majority in
principal amount of the then outstanding Securities of any series and such Holders of such series
do not reasonably promptly appoint a successor Trustee, or if a vacancy exists in the office of the
Trustee for any reason (the Trustee in such event being referred to herein as the retiring
Trustee), the Company shall promptly appoint a successor Trustee with respect to such series.



     If a successor Trustee with respect to Securities of any series does not take office within 60
days after the retiring Trustee resigns or is removed, the retiring Trustee or the Holders of at
least 10% in principal amount of the then outstanding Securities of such series may petition, at
the Company’s expense, any court of competent jurisdiction for the appointment of a successor
Trustee with respect to Securities of such series.



     If the Trustee with respect to the Securities of a series fails to comply with Section
7.10, unless the Trustee’s duty to resign is stayed as provided in TIA § 310(b), any Holder who
has been a bona fide Holder of a Security of such series for at least six months may petition any
court of competent jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee with respect to such series.



37









 





     In case of the appointment of a successor Trustee with respect to all Securities, each such
successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee, to
the Company and to any Guarantors. Thereupon the resignation or removal of the retiring Trustee
shall become effective, and the successor Trustee shall have all the rights, power and duties of
the retiring Trustee under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders. The retiring Trustee shall promptly transfer all property held by it as
Trustee to the successor Trustee, subject to the lien provided for in Section 7.7.



     In case of the appointment of a successor Trustee with respect to the Securities of one or
more (but not all) series, the Company, any Guarantors, the retiring Trustee and each successor
Trustee with respect to the Securities of one or more (but not all) series shall execute and
deliver an indenture supplemental hereto in which each successor Trustee shall accept such
appointment and that (1) shall confer to each successor Trustee all the rights, powers and duties
of the retiring Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the retiring Trustee is not retiring with
respect to all Securities, shall confirm that all the rights, powers and duties of the retiring
Trustee with respect to the Securities of that or those series as to which the retiring Trustee is
not retiring shall continue to be vested in the retiring Trustee and (3) shall add to or change any
of the provisions of this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee. Nothing herein or in such
supplemental indenture shall constitute such Trustees co-trustees of the same trust, and each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts
hereunder administered by any other such Trustee. Upon the execution and delivery of such
supplemental indenture, the resignation or removal of the retiring Trustee shall become effective
to the extent provided therein and each such successor Trustee shall have all the rights, powers
and duties of the retiring Trustee with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates. On request of the Company or any successor
Trustee, such retiring Trustee shall transfer to such successor Trustee all property held by such
retiring Trustee as Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates. Such retiring Trustees shall, however, have the
right to deduct its unpaid fees and expenses, including attorneys’ fees.



     Notwithstanding the replacement of the Trustee pursuant to this Section 7.8, the
Company’s obligations under Section 7.7 shall continue for the benefit of the retiring
Trustee.



     Section 7.9. Successor Trustee by Merger. If the Trustee consolidates with, merges or converts into, or transfers all or substantially all
its corporate trust business or assets to, another corporation or banking association, the
resulting, surviving or transferee corporation without any further act shall be the successor
Trustee.



     In case at the time such successor or successors by merger, conversion or consolidation to the
Trustee shall succeed to the trusts created by this Indenture, any of the Securities shall have
been authenticated but not delivered, any such successor to the Trustee may adopt the certificate
of authentication of any predecessor trustee, and deliver such Securities so authenticated; and in
case at that time any of the Securities shall not have been authenticated, any successor to the
Trustee may authenticate such Securities either in the name of any predecessor hereunder or in



38









 







the
name of the successor to the Trustee; and in all such cases such certificates shall have the full
force which it is anywhere in the Securities or in this Indenture.



     Section 7.10. Eligibility; Disqualification. The Trustee shall at all times satisfy the requirements of TIA § 310(a). The Trustee shall have
a combined capital and surplus of at least $100.0 million as set forth in its most recent published
annual report of condition. The Trustee shall comply with TIA § 310(b); provided, however, that
there shall be excluded from the operation of TIA § 310(b)(1) any indenture or indentures under
which other securities or certificates of interest or participation in other securities of the
Company are outstanding if the requirements for such exclusion set forth in TIA § 310(b)(1) are
met.



     Section 7.11. Preferential Collection of Claims Against Company. The Trustee shall comply with TIA § 311(a), excluding any creditor relationship listed in TIA §
311(b). A Trustee who has resigned or been removed shall be subject to TIA § 311(a) to the extent
indicated.



ARTICLE VIII




Legal Defeasance and Covenant Defeasance




     Section 8.1. Option to Effect Legal Defeasance or Covenant Defeasance. Unless otherwise designated pursuant to Section 2.1(20), the Securities of any series
shall be subject to defeasance or covenant defeasance pursuant to Section 8.2 or
8.3, in accordance with any applicable requirements provided pursuant to Section
2.1 and upon compliance with the conditions set forth in this Article VIII. The
Company may, at its option and at any time, elect to have either Section 8.2 or 8.3
hereof be applied to all outstanding Securities of any series so subject to defeasance or covenant
defeasance. Any such election shall be evidenced by a Board Resolution of the Company or in another
manner specified as contemplated by Section 2.1 for such Securities.



     Section 8.2. Legal Defeasance and Discharge. Upon the Company’s exercise under Section 8.1 hereof of the option applicable to this
Section 8.2 with respect to Securities of any series, the Company shall, subject to the
satisfaction of the conditions set forth in Section 8.4 hereof, be deemed to have been
discharged from its Obligations with respect to all outstanding Securities of such series on the
date the conditions set forth below are satisfied (hereinafter, “Legal Defeasance”) and
each Guarantor, if applicable, shall be released and relieved from all of its Obligations under its
Security Guarantee with
respect to such series. For this purpose, Legal Defeasance means that the Company shall be deemed
to have paid and discharged the entire indebtedness represented by the outstanding Securities with
respect to such series, which shall thereafter be deemed to be “outstanding” only for the purposes
of Section 8.5 hereof and the other Sections of this Indenture referred to in clauses (a)
through (e) below, and to have satisfied all its other obligations under the Securities with
respect to such series and this Indenture (and the Trustee, on demand of and at the expense of the
Company, shall execute proper instruments acknowledging the same), except for the following
provisions which shall survive until otherwise terminated or discharged hereunder: (a) the rights
of Holders of outstanding Securities with respect to such series to receive, solely from the trust
fund described in Sections 8.4 and 8.5 hereof, and as more fully set forth in such
Section, payments in respect of the principal of, premium, if any, and interest and Additional
Amounts, if any, on such Securities when such



39









 







payments are due, (b) the Company’s Obligations with
respect to such Securities under Article II and Sections 3.1 hereof, (c) the
rights, powers, trusts, duties and immunities of the Trustee hereunder and the Company’s and any
Guarantors’ obligations in connection therewith, (d) the optional redemption provisions, if any,
with respect to such Securities, and (e) this Article VIII. If the Company exercises under
Section 8.1 hereof the option applicable to this Section 8.2, subject to the
satisfaction of the conditions set forth in Section 8.4 hereof, payment of the Securities
with respect to such series may not be accelerated because of an Event of Default. Subject to
compliance with this Article VIII, the Company may exercise its option under this
Section 8.2 notwithstanding the prior exercise of its option under Section 8.3
hereof.



     Section 8.3. Covenant Defeasance. Upon the Company’s exercise under Section 8.1 hereof of the option applicable to this
Section 8.3 with respect to Securities of any series, the Company shall, with respect to
such series of Securities, subject to the satisfaction of the conditions set forth in Section
8.4 hereof, be released from its obligations under the covenants contained in Sections
3.2 and 3.3, with respect to the outstanding Securities of such series on and after the
date the conditions set forth in Section 8.4 hereof are satisfied (hereinafter,
“Covenant Defeasance”) and each Guarantor, if applicable, shall be released from all of its
obligations under its Security Guarantee with respect to such series of Securities, and the
Securities of such series shall thereafter be deemed not “outstanding” for the purposes of any
direction, waiver, consent or declaration or act of Holders of such series (and the consequences of
any thereof) in connection with such covenants, but shall continue to be deemed “outstanding” for
all other purposes hereunder (it being understood that such Securities shall not be deemed
outstanding for accounting purposes). For this purpose, Covenant Defeasance means that, with
respect to the outstanding Securities of such series, the Company and any Guarantors may omit to
comply with and shall have no liability in respect of any term, condition or limitation set forth
in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein
to any such covenant or by reason of any reference in any such covenant to any other provision
herein or in any other document and such omission to comply shall not constitute a Default or an
Event of Default under Section 6.1 hereof, but, except as specified above, the remainder of
this Indenture and such Securities shall be unaffected thereby. If the Company exercises under
Section 8.1 hereof the option applicable to this Section 8.3, subject to the
satisfaction of the conditions set forth in Section 8.4 hereof, payment of the Securities
of such series may not be accelerated because of an Event of Default specified in
clauses (4) (with respect to Sections 3.2 and 3.3),
(6) and (7) of such Section 6.1.



     Section 8.4. Conditions to Legal or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.2 or
8.3 hereof to the outstanding Securities of any series.



     In order to exercise Legal Defeasance or Covenant Defeasance with respect to the Securities of
any series:




     (1) the Company must irrevocably deposit with the Trustee, in trust, for the
benefit of the Holders of the Securities of such series, cash in U.S. dollars,
non-callable Government Securities, or a combination of cash in U.S. dollars, and
non-callable Government Securities, in amounts as will be sufficient, in the



40









 







opinion
of a nationally recognized investment bank, appraisal firm or firm of independent
public accountants, to pay the principal of, and interest and Additional Amounts, if
any, and premium, if any, on the outstanding Securities of such series on the stated
date for payment or on the applicable Redemption Date, as the case may be, and the
Company must specify whether the Securities of such series are being defeased to
such stated date for payment or to a particular Redemption Date;




     (2) in the case of Legal Defeasance, the Company must deliver to the Trustee an
Opinion of Counsel reasonably acceptable to the Trustee confirming that: (a) the
Company has received from, or there has been published by, the Internal Revenue
Service a ruling; or (b) since the date of this Indenture, there has been a change
in the applicable federal income tax law, in either case to the effect that, and
based thereon such Opinion of Counsel will confirm that, the Holders of the
outstanding Securities of such series will not recognize income, gain or loss for
federal income tax purposes as a result of such Legal Defeasance and shall be
subject to federal income tax in the same amounts, in the same manner and at the
same times as would have been the case if such Legal Defeasance had not occurred;




     (3) in the case of Covenant Defeasance, the Company must deliver to the Trustee
an Opinion of Counsel reasonably acceptable to the Trustee confirming that Holders
of the outstanding Securities of such series shall not recognize income, gain or
loss for federal income tax purposes as a result of such Covenant Defeasance and
shall be subject to federal income tax in the same amounts, in the same manner and
at the same times as would have been the case if such Covenant Defeasance had not
occurred;




     (4) no Default or Event of Default has occurred and be continuing with respect
to the Securities of such series on the date of such deposit (other than a Default
or Event of Default resulting from the borrowing of funds to be applied to such
deposit);




     (5) such Legal Defeasance or Covenant Defeasance will not result in a breach or
violation of, or constitute a default under, any material agreement or instrument
(other than this Indenture) to which the Company or any of its Subsidiaries is a
party or by which the Company or any of its Subsidiaries is bound;




     (6) the Company must deliver to the Trustee an Officers’ Certificate stating
that such deposit was not made by the Company with the intent of preferring the
Holders of Securities of such series over the other creditors of the Company with
the intent of defeating, hindering, delaying or defrauding creditors of the Company
or others; and



41









 






     (7) the Company must deliver to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that all conditions precedent relating to the Legal
Defeasance or the Covenant Defeasance have been complied with.



     Section 8.5. Deposited Cash and Government Securities to be Held in Trust; Other
Miscellaneous Provisions. Subject to Section 8.6 hereof, all cash and non-callable Government Securities
(including the proceeds thereof) deposited with the Trustee (or other qualifying trustee),
collectively for purposes of this Section 8.5, the “Trustee”) pursuant to
Section 8.4 hereof in respect of the outstanding Securities of such series shall be held in
trust and applied by the Trustee, in accordance with the provisions of such Securities of such
series and this Indenture, to the payment, either directly or through any Paying Agent (including
the Company acting as Paying Agent) as the Trustee may determine, to the Holders of Securities of
such series of all sums due and to become due thereon in respect of principal, premium, if any,
interest and Additional Amounts, if any, but such cash and securities need not be segregated from
other funds except to the extent required by law.



     The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against the cash or non-callable Government Securities deposited pursuant to
Section 8.4 hereof or the principal and interest received in respect thereof other than any
such tax, fee or other charge which by law is for the account of the Holders of the outstanding
Securities of such series.



     Anything in this Article VIII to the contrary notwithstanding, the Trustee shall
deliver or pay to the Company from time to time upon the request of the Company any cash or
non-callable Government Securities held by it as provided in Section 8.4 hereof which, in
the opinion of a nationally recognized independent registered public accounting firm expressed in a
written certification thereof delivered to the Trustee (which may be the certification delivered
under clause (1) of Section 8.4 hereof), are in excess of the amount thereof that would
then be required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.



     Section 8.6. Repayment to Company. Any cash or non-callable Government Securities deposited with the Trustee or any Paying Agent,
or then held by the Company, in trust for the payment of the principal of, premium, if any,
on, or interest or Additional Amounts, if any, on, any Security of any series and remaining
unclaimed for one year after such principal, premium, if any, or interest or Additional Amounts, if
any, has become due and payable shall be paid to the Company on its request (unless an abandoned
property law designates another Person) or (if then held by the Company) shall be discharged from
such trust; and such Holder shall thereafter, as an unsecured creditor, look only to the Company
for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such
cash and securities, and all liability of the Company as Trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in The New York Times and
The Wall Street Journal (national edition), notice that such cash and securities remains unclaimed
and that, after a date specified therein, which shall not be less than 30 days from the date of
such notification or publication, any unclaimed balance of such cash and securities then remaining
shall be repaid to the Company.



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     Section 8.7. Reinstatement. If the Trustee or Paying Agent is unable to apply any cash or non-callable Government Securities
in accordance with Section 8.2, 8.3 or 8.5 hereof, as the case may be, by
reason of any order or judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, then the Company’s obligations under this Indenture and the
Securities of such series shall be revived and reinstated as though no deposit had occurred
pursuant to Section 8.4 hereof until such time as the Trustee or Paying Agent is permitted
to apply all such cash and securities in accordance with Section 8.2, 8.3 or
8.5 hereof, as the case may be; provided, however, that, if the Company makes any payment
of principal of, premium, if any, on, or interest or Additional Amounts, if any, on, any Security
of such series following the reinstatement of its obligations, the Company shall be subrogated to
the rights of the Holders of such series to receive such payment from the cash and securities held
by the Trustee or Paying Agent.



ARTICLE IX




Amendments




     Section 9.1. Without Consent of Holders. Except as otherwise provided as contemplated by Section 2.1 with respect to the
Securities of any series, the Company, any Guarantors and the Trustee may amend or supplement this
Indenture, the Securities or the Security Guarantees without notice to or consent of any Holder:




     (1) to cure any ambiguity, defect or inconsistency;




     (2) to provide for uncertificated Securities in addition to or in place of
certificated Securities;




     (3) to provide for the assumption of the Company’s or a Guarantor’s obligations
to Holders of Securities of any series and Security Guarantees in the case of a
merger or consolidation or sale of all or substantially all of the Company’s or such
Guarantor’s properties or assets, as applicable;




     (4) to comply with requirements of the SEC in order to maintain the
qualification of this Indenture under the Trust Indenture Act;



     (5) to make any change that would provide any additional rights or benefits to the Holders of
Securities of any series and Security Guarantees or that does not adversely affect the legal rights
under this Indenture of any such Holder;



     (6) to add to the covenants of the Company or any Guarantor for the benefit of
the Holders of all or any series of Securities (and if such covenants are to be for
the benefit of less than all series of Securities, stating that such covenants are
expressly being included solely for the benefit of such series), or to surrender any
right or power herein conferred upon the Company or any Guarantor;




     (7) to add any additional Events of Default with respect to all or any series
of the Securities (and, if any such Event of Default is applicable to less than
all series of Securities, specifying the series to which such Event of Default is
applicable);




     (8) to change or eliminate any of the provisions of this Indenture; provided
that any such change or elimination shall become effective only when



43









 







there is no
outstanding Security of any series created prior to the execution of such amendment
or supplemental indenture that is adversely affected in any material respect by such
change in or elimination of such provision;




     (9) to establish the form or terms of Securities of any series as permitted by
Section 2.1;




     (10) to supplement any of the provisions of this Indenture to such extent as
shall be necessary to permit or facilitate the defeasance and discharge of any
series of Securities pursuant to Section 8.1; provided, however, that any
such action shall not adversely affect the interest of the Holders of Securities of
such series or any other series of Securities in any material respect;




     (11)
to add any Guarantor with respect to the Securities of any series by executing a supplemental indenture and/or a Security Guarantee with respect to such series, or release Security Guarantees of any series, in each case pursuant to the terms of this Indenture;




     (12) to secure the Securities of any series;




     (13) to evidence and provide for the acceptance under this Indenture of a
successor trustee; or




     (14) to conform the text of this Indenture or any Securities to the description thereof in any
prospectus or prospectus supplement of the Company with respect to the offer and sale of Securities
of any series, to the extent that such provision is inconsistent with a provision of this Indenture
or the Securities.





     After an amendment under this Indenture becomes effective, the Company is required to mail to
the Holders of each Security affected thereby a notice briefly describing such amendment. However,
the failure to give such notice to all the Holders of each Security affected thereof, or any defect
therein, will not impair or affect the validity of the amendment or supplemental indenture under
this Section 9.1.



     Section 9.2. With Consent of Holders. Except as otherwise provided as contemplated by Section 2.1 with respect to the
Securities of any series, except as provided below in this Section 9.2, the Company, any
Guarantors and the Trustee may amend or supplement this Indenture with the consent (including
consents obtained in connection with a tender offer or exchange offer for Securities) of the
Holders of a majority in principal amount of the then outstanding
Securities of each series affected
by such amendment or supplement (acting as separate classes).



     Upon the request of the Company, accompanied by a Board Resolution, and upon the filing with
the Trustee of evidence of the consent of the Holders as aforesaid, and upon receipt by the Trustee
of the documents described in Section 9.5, the Trustee shall, subject to Section
9.6,



44









 







join with the Company and any Guarantors in the execution of such amendment or
supplemental indenture.



     Except as otherwise provided as contemplated by Section 2.1 with respect to the
Securities of any series, the Holders of a majority in principal amount of the then outstanding
Securities of one or more series or of all series affected by such
waiver (acting as separate classes) may
waive compliance in a particular instance by the Company or any Guarantor with any provision of
this Indenture with respect to Securities of such series (including waivers obtained in connection
with a tender offer or exchange offer for Securities of such series).



     However, except as otherwise provided as contemplated by Section 2.1 with respect to the
Securities of any series, without the consent of each Holder affected, an amendment, supplement or
waiver may not (with respect to any Securities held by a non-consenting Holder):




     (1) reduce the principal amount of Securities whose Holders must consent to an
amendment, supplement or waiver;




     (2) reduce the principal of or change the fixed maturity of any Security or
alter the provisions with respect to the redemption or repurchase of the Securities;




     (3) reduce the rate of or change the time for payment of interest, including
default interest on any Security;




     (4) waive a Default or Event of Default in the payment of principal of, or
interest or premium, or Additional Amounts, if any, on the Securities (except a
rescission of acceleration of the Securities by the Holders of at least a majority
in aggregate principal amount of the then outstanding Securities and a waiver of the
payment default that resulted from such acceleration);




     (5) make any Security payable in currency other than that stated in the
Securities;




     (6) make any change in the provisions of this Indenture relating to waivers of
past Defaults or the rights of Holders of Securities to receive payments of
principal of, or interest or premium, if any, on the Securities (other than as
permitted in clause (7) below);




     (7) waive a redemption payment with respect to any Security;




     (8) impair the right of a Holder of Securities to institute suit for the enforcement of any
payment on the Securities;



     (9) release any Guarantor from any of its
obligations under its Security Guarantee or this Indenture, except in accordance
with the terms of this Indenture; or




     (10) make any change in the preceding amendment, supplement and waiver
provisions.



45









 





     It shall not be necessary for the consent of the Holders under this Section 9.2 to
approve the particular form of any proposed amendment, but it shall be sufficient if such consent
approves the substance of the proposed amendment.



     A supplemental indenture which changes or eliminates any covenant or other provision of this
Indenture which has expressly been included solely for the benefit of one or more particular series
of Securities, or which modifies the rights of the Holders of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this Indenture of the
Holders of any other series.



     A consent to any amendment or waiver under this Indenture by any Holder of the Securities
given in connection with a tender of such Holder’s Securities will not be rendered invalid by such
tender. After an amendment under this Section becomes effective, the Company shall mail to Holders
of each Security affected thereby a notice briefly describing such amendment. The failure to give
such notice to all Holders of each Security affected thereby, or any defect therein, shall not
impair or affect the validity of an amendment, supplemental indenture or waiver under this
Section 9.2.



     Section 9.3.
Compliance with Trust Indenture Act. Every amendment or
supplement to this Indenture or the Securities shall comply with the
Trust Indenture Act of 1939 as
then in effect.



     Section 9.4. Revocation and Effect of Consents and Waivers. A consent to an amendment or a waiver by a Holder of a Security shall be in writing and bind the
Holder and every subsequent Holder of that Security or portion of the Security that evidences the
same debt as the consenting Holder’s Security, even if notation of the consent or waiver is not
made on the Security. However, any such Holder or subsequent Holder may revoke the consent or
waiver as to such Holder’s Security or portion of the Security if the Trustee receives
the notice of revocation before the date the amendment or waiver becomes effective. After an
amendment or waiver becomes effective with respect to a series of Securities, it shall bind every
Holder of Securities of such series.



     For purposes of this Indenture, the written consent of the Holder of a Global Security shall
be deemed to include any consent delivered by an Agent Member by electronic means in accordance
with the Automated Tender Offer Procedures system or other customary procedures of, and pursuant to
authorization by, DTC.



     The Company may, but shall not be obligated to, fix a record date for the purpose of
determining the Holders entitled to give their consent or take any other action described above or
required or permitted to be taken pursuant to this Indenture. The Trustee may, but shall not be
obligated to, fix a record date for the purpose of determining the Holders of Securities of any
series entitled to join in the giving, making or taking of (i) any notice permit to Section
6.1(4) or otherwise of any Default, (ii) any declaration of acceleration pursuant to
Section 6.2, (iii) any request to institute proceedings pursuant to Section 6.6(2),
or (iv) any direction referred to in Section 6.5, in each case with respect to such series.
If a record date is so fixed, then notwithstanding the second preceding paragraph, those Persons
who were Holders at such record date (or their duly designated proxies), and only those Persons,
shall be entitled to give such consent or to revoke any consent previously given or to take any
such action, whether or not such



46









 







Persons continue to be Holders after such record date. No such
consent shall become valid or effective more than 180 days after such record date.



     Section 9.5. Notation on or Exchange of Securities. If an amendment changes the terms of a Security, the Trustee may require the Holder of the
Security to deliver it to the Trustee. The Trustee may place an appropriate notation on the
Security regarding the changed terms and return it to the Holder. Alternatively, if the Company or
the Trustee so determines, the Company in exchange for the Security shall issue and the Trustee
shall authenticate a new Security that reflects the changed terms. Failure to make the appropriate
notation or to issue a new Security shall not affect the validity of such amendment.



     Section 9.6. Trustee To Sign Amendments. The Trustee shall sign any amendment authorized pursuant to this Article IX if the
amendment does not adversely affect the rights, duties, liabilities or immunities of the Trustee.
If it does, the Trustee may but need not sign it. In signing such amendment the Trustee shall be
entitled to receive indemnity reasonably satisfactory to it and to receive, and (subject to
Sections 7.1 and 7.2) shall be fully protected in relying upon an Officers’
Certificate and an Opinion of Counsel stating that the execution of such amendment is authorized or permitted by
this Indenture, that such amendment is the legal, valid and binding obligation of the Company enforceable against
the Company in accordance with its terms, subject to customary exceptions, and that such amendment
complies with the provisions hereof (including Section 9.3)
..



ARTICLE X




Securities Guarantee




     Section 10.1. Securities Guarantee. Securities of any series that are to be guaranteed by the Securities Guarantees of any
Guarantors shall be guaranteed by such Guarantors as shall be established pursuant to Section
2.1 as Guarantors with respect to the Securities of such series; provided that, prior to the
authentication and delivery upon original issuance of Securities of any series that are to be
guaranteed by a Person, the Company, the Trustee and such Person shall have entered into a
supplemental indenture pursuant to Section 9.1(10) hereof whereby such Person shall have
executed a Securities Guarantee under this Indenture with respect to any series of Securities as to
which such Person has been so established pursuant to Section 2.1 as a Guarantor thereof
and shall have made each of the covenants and agreements of a Guarantor hereunder with respect to
each such series.



     Securities of any series that are to be guaranteed by the Securities Guarantees of any
Guarantors shall be guaranteed in accordance with the terms of such Securities Guarantees as
established pursuant to Section 2.1 with respect to such series of Securities and such
Securities Guarantees thereof and (except as otherwise specified as contemplated by Section
2.1 for such series of Securities and such Securities Guarantees thereof) in accordance with
this Article X. Notwithstanding any provision of this Article X to the contrary,
the provisions of this Article X relating to any Guarantor shall (i) be applicable only to,
and inure solely to the benefit of, the Securities of any series designated, pursuant to
Section 2.1, as entitled to the benefits of the related Securities Guarantee of such
Guarantor with respect to such series and (ii) so be applicable, and inure to the benefit of, the
Securities of such series except to the extent otherwise provided as contemplated by Section
2.1 with respect to the Securities of such series.



47









 





     Any Guarantor shall fully, unconditionally and irrevocably guarantee, as primary obligor and
not merely as surety, jointly and severally with any other Guarantor, to each Holder of the
Securities and the Trustee the full and punctual payment when due, whether at maturity, by
acceleration, by redemption or otherwise, of the principal of, premium, if any, interest and
Additional Amounts, if any, on the Securities and all other monetary Obligations of the Company
under this Indenture. Any Guarantor shall further agree (to the extent permitted by law) that the
Obligations may be extended or renewed, in whole or in part, without notice or further assent from
it, and that it will remain bound under this Article X notwithstanding any extension or
renewal of any Obligation.



     Any Guarantor shall waive presentation to, demand of payment from and protest to the Company
of any of the Obligations and also shall waive notice of protest for nonpayment. Any Guarantor
shall waive notice of any default under the Securities or the Obligations. The obligations of any
Guarantor shall not be affected by (a) the failure of any Holder to assert any claim or demand or
to enforce any right or remedy against the Company or any other Person under this Indenture, the
Securities or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c)
any rescission, waiver, amendment or modification of any of the terms or provisions of this
Indenture, the Securities or any other agreement; (d) the release of any
Security held by any Holder or the Trustee for the Obligations of any of them; (e) the failure
of any Holder to exercise any right or remedy against any other Guarantor; or (f) any change in the
ownership of the Company.



     Any Guarantor shall further agree that its Security Guarantee constitutes a Guarantee of
payment when due (and not a Guarantee of collection) and shall waive any right to require that any
resort be had by any Holder to any Security held for payment of the Obligations.



     Except as expressly set forth in Article VIII and Section 10.3, the
obligations of each Guarantor shall not be subject to any reduction, limitation, impairment or
termination for any reason (other than payment of the Obligations in full), including any claim of
waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of
setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity,
illegality or unenforceability of the Obligations or otherwise. Without limiting the generality of
the foregoing, the obligations of each Guarantor shall not be discharged or impaired or otherwise
affected by the failure of the Trustee or any Holder to assert any claim or demand or to enforce
any remedy under this Indenture, the Securities or any other agreement, by any waiver or
modification of any thereof, by any default, failure or delay, willful or otherwise, in the
performance of the Obligations, or by any other act or thing or omission or delay to do any other
act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or
would otherwise operate as a discharge of such Guarantor as a matter of law or equity.



     Each Guarantor shall further agree that its Security Guarantee shall continue to be effective
or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of
or interest or Additional Amounts, if any, on any of the Obligations is rescinded or must otherwise
be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwise.



48









 





     In furtherance of the foregoing and not in limitation of any other right which any Holder has
at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay
any of the Obligations when and as the same shall become due, whether at maturity, by acceleration,
by redemption or otherwise, each Guarantor shall, upon receipt of written demand by the Trustee,
forthwith pay, or cause to be paid, in cash, to the Holders an amount equal to the sum of (i) the
unpaid amount of such Obligations then due and owing and (ii) accrued and unpaid interest on such
Obligations then due and owing (but only to the extent not prohibited by law) and except as
provided in Section 10.3.



     Each Guarantor shall further agree that, as between such Guarantor, on the one hand, and the
Holders, on the other hand, (x) the maturity of the Obligations Guaranteed may be accelerated as
provided in this Indenture for the purposes of its Security Guarantee, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the Obligations
Guaranteed and (y) in the event of any such declaration of acceleration of such Obligations, such
Obligations (whether or not due and payable) shall forthwith become due and payable by the
Guarantor for the purposes of the Security Guarantee.



     Each Guarantor also shall agree to pay any and all reasonable costs and expenses (including
reasonable attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under
this Section 10.1.



     Section 10.2. Execution and Delivery of Securities Guarantees; Notations of Guarantees. The Securities Guarantee of any Guarantor with respect to Securities of any series as to which
such Guarantor has been established as a Guarantor pursuant to Section 2.1 shall be fully
evidenced by such Guarantor’s execution and delivery of a supplemental indenture hereto. Anything
herein to the contrary notwithstanding, there shall be no requirement that any Security having the
benefit of a Securities Guarantee have endorsed thereon or attached thereto such Securities
Guarantee or a notation of such Securities Guarantee. Solely with respect to Securities of any
series that are entitled to the benefits of any Securities Guarantee of any Guarantor and as to
which Notations of Guarantee are to be included on such Securities as designated pursuant to
Section 2.1(9), to further evidence its Securities Guarantee set forth in Section
10.1 or otherwise established pursuant hereto with respect to Securities of such series, each
of the Guarantors with respect to Securities of any series shall agree that a notation relating to
such Securities Guarantee (the “Notation of Guarantee”), substantially in the form attached
hereto as Annex A, shall be endorsed on each Security of such series entitled to the benefits of
such Securities Guarantee authenticated and delivered by the Trustee, which Notation of Guarantee
shall be executed by either manual or facsimile signature of an Officer of such Guarantor. Each of
the Guarantors with respect to Securities of any series shall agree that its Securities Guarantee
set forth in Section 10.1 or otherwise established pursuant hereto with respect to
Securities of such series shall remain in full force and effect notwithstanding any absence of
Notations of Guarantees as to such series or any failure to endorse on any Security the Notation of
Guarantee relating to such Securities Guarantee. If any Officer of any Guarantor with respect to
Securities of any series, whose signature is on the Notation of Guarantee on any Security of such
series, no longer holds that office at the time the Trustee authenticates any Security or at any
time thereafter, the Securities Guarantee of such Security shall be valid nevertheless. The
delivery of any Security of a series entitled to the benefits of a Securities Guarantee under this
Article X or otherwise



49









 







established pursuant hereto by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of such Securities Guarantee on behalf of each
Guarantor.



     Section 10.3. Limitation on Liability; Termination, Release and Discharge.




     (a) The obligations of any Guarantor will be limited to the maximum amount as will,
after giving effect to all other contingent and fixed liabilities of such Guarantor and
after giving effect to any collections from or payments made by or on behalf of any other
Guarantor in respect of the obligations of such other Guarantor under its Security Guarantee
or pursuant to its contribution obligations under this Indenture, result in the obligations
of such Guarantor under its Security Guarantee not constituting a fraudulent conveyance or
fraudulent transfer under federal or state law.




     (b) The Security Guarantee of a Guarantor shall be automatically and unconditionally
released and discharged, without the consent of the Holders, and no further action by the
Company, any Guarantor or the Trustee shall be required for such release (unless the Company
shall notify the Trustee that no release and discharge shall occur as a result thereof)
upon:




     (1) the sale or other disposition (including by way of consolidation or merger)
of such Guarantor to a Person other than the Company or any Subsidiary of the
Company as permitted by this Indenture; or




     (2) upon Legal Defeasance or Covenant Defeasance as provided in Article
VIII or upon satisfaction and discharge of this Indenture as provided in
Article XI.


     (c) Any Guarantor not released from its obligations under its Security Guarantee shall
remain liable for the full amount of principal of and interest on the Securities and for the
other obligations of any Guarantor as provided in this Article X.




     Section 10.4. Limitation of Guarantors’ Liability. Any Guarantor, and by its acceptance thereof each Holder, shall confirm that it is the intention
of all such parties that the Guarantee by such Guarantor pursuant to its Security Guarantee not
constitute a fraudulent transfer or



50









 







conveyance for purposes of the Federal Bankruptcy Code, the
Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or
state law. To effectuate the foregoing intention, the Holders and each Guarantor shall irrevocably
agree that the obligations of such Guarantor under its Security Guarantee will be limited to the
maximum amount as will, after giving effect to all other contingent and fixed liabilities of such
Guarantor and after giving effect to any collections from or payments made by or on behalf of any
other Guarantor in respect of the obligations of such other Guarantor under its Security Guarantee
or pursuant to Section 10.5 hereof, result in the obligations of such Guarantor under its
Security Guarantee not constituting such a fraudulent conveyance or fraudulent transfer. This
Section 10.4 is for the benefit of the creditors of each Guarantor.



     Section 10.5. Contribution. In order to provide for just and equitable contribution among the Guarantors, the Guarantors
agree that in the event any payment or distribution is made by any Guarantor (a “Funding
Guarantor”) under its Security Guarantee, such Funding Guarantor will be entitled to a
contribution from each other Guarantor (if any) in a pro rata amount based on the Adjusted Net
Assets of each Guarantor (including the Funding Guarantor) for all payments, damages and expenses
incurred by that Funding Guarantor in discharging the Company’s obligations with respect to the
Securities or any other Guarantor’s obligations with respect to its Security Guarantee.




     Section 10.6 Guarantors May Consolidate, etc., on Certain Terms.




     (a) Except as otherwise provided in Section 10.3 in connection with any release and
discharge of a Guarantor, no Guarantor may consolidate or combine with or merge with or into
(whether or not such Guarantor is the surviving person) or sell or convey all or
substantially all of its assets to another Person whether or not affiliated with such
Guarantor, unless the Person formed by or surviving any such consolidation, combination or
merger or the transferee Person (in each case if other than a Guarantor or the Company)
unconditionally assumes all the obligations of such Guarantor, pursuant to a supplemental
indenture in form and substance reasonably satisfactory to the Trustee.




     In case of any such consolidation, merger, combination, sale or conveyance and upon the
assumption by the successor Person, by supplemental indenture, executed and delivered to the
Trustee and satisfactory in form to the Trustee, of such Security Guarantee and the due and
punctual performance of all of the covenants and conditions of this Indenture to be
performed by the Guarantor, such successor Person shall become a Guarantor (and succeed to
and be substituted for the predecessor to the extent of any release and discharge of such
predecessor pursuant to Section 10.3).




     (b) Notwithstanding clause (a) above, nothing contained in this Indenture or in any of
the Securities shall prevent any consolidation, combination or merger of a Guarantor with or
into the Company or another Guarantor, or shall prevent any sale or conveyance of all or
substantially all of the assets of a Guarantor to the Company or another Guarantor.







ARTICLE XI




Satisfaction and Discharge




     Section 11.1. Satisfaction and Discharge. This Indenture will be discharged and will cease to be of further effect as to all Securities of
any series issued hereunder (except as to surviving rights of registration of transfer or exchange
of such Securities and as otherwise specified hereunder), when:




     (1) either:




     (a) all Securities of such series that have been authenticated, except
lost, stolen or destroyed Securities that have been replaced or paid and
Securities of such series for whose payment money has been deposited in
trust and thereafter repaid to the Company, have been delivered to the
Trustee for cancellation; or




     (b) all Securities of such series that have not been delivered to the
Trustee for cancellation have become due and payable or will become due and
payable within one year by reason of the mailing of a notice of redemption
or otherwise and the Company or any Guarantor has irrevocably deposited or
caused to be deposited with the Trustee as trust funds in trust solely for
the benefit of the Holders of Securities of such series, cash in U.S.
dollars, non-callable Government Securities, or a combination of cash in
U.S. dollars and non-callable Government Securities, in amounts as will be
sufficient without consideration of any reinvestment of interest, to pay and
discharge the entire indebtedness on



51









 







such Securities not delivered to the
Trustee for cancellation for principal, premium, if any, and accrued
interest and Additional Amounts, if any, to the date of maturity or
redemption;




     (2) no Default or Event of Default with respect to such series has occurred and
is continuing on the date of the deposit (other than a Default or Event of Default
resulting from the borrowing of funds to be applied to such deposit) and the deposit
will not result in a breach or violation of, or constitute a default under, any
other instrument to which the Company or any of its
Subsidiaries is a party or by which the Company or any of its Subsidiaries is
bound;




     (3) the Company or any Guarantor has paid or caused to be paid all sums payable
by it hereunder with respect to such series;




     (4) the Company has delivered irrevocable instructions to the Trustee hereunder
to apply the deposited money toward the payment of such Securities at fixed maturity
or the Redemption Date, as the case may be; and




     (5) the Company has delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, which state that all conditions precedent under this Indenture
relating to the satisfaction and discharge of this Indenture with respect to such
series have been satisfied.



ARTICLE XII




Miscellaneous




     Section 12.1. Trust Indenture Act Controls. If any provision of this Indenture limits, qualifies or conflicts with another provision which
is required to be included in this Indenture by the TIA, the provision required by the TIA shall
control. Any Guarantor in addition to performing its obligations under its Security Guarantee
shall perform such other obligations as may be imposed upon it with respect to this Indenture under
the TIA.



     Section 12.2. Notices. Any notice or communication shall be in writing and delivered in person, by telecopier or
overnight air courier guaranteeing next day delivery or mailed by first-class mail addressed as
follows:


if to the Company:



Dr Pepper Snapple Group, Inc.

5301 Legacy Drive

Plano, Texas 75024

Attention: General Counsel




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if to the Trustee:



Wells Fargo Bank, N.A.

201 Main Street, Suite 301

Fort Worth, Texas 76102

Attention: John C. Stohlmann



     The Company, any Guarantors or the Trustee by notice to the others may designate additional or
different addresses for subsequent notices or communications.



     Any notice or communication mailed to a registered Holder shall be mailed to the Holder at the
Holder’s address as it appears on the registration books of the Registrar and shall be sufficiently
given if so mailed within the time prescribed. The Registrar shall provide the Company with
address information with respect to the Holders as promptly as practicable following the Company’s
request therefor. Any notice or communication shall also be mailed to any Person described in TIA
§ 3.13(c), to the extent required by the TIA.



     Failure to mail a notice or communication to a Holder or any defect in it shall not affect its
sufficiency with respect to other Holders. If a notice or communication is mailed in the manner
provided above, it is duly given, whether or not the addressee receives it.



     Section 12.3. Communication by Holders with other Holders. Holders may communicate pursuant to TIA § 312(b) with other Holders with respect to their rights
under this Indenture or the Securities. The Company, the Trustee, the Registrar and anyone else
shall have the protection of TIA § 312(c).



     Section 12.4. Certificate and Opinion as to Conditions Precedent. Upon any request or application by the Company to the Trustee to take or refrain from taking any
action under this Indenture, the Company shall furnish to the Trustee:




     (1) an Officers’ Certificate in form and substance reasonably satisfactory to
the Trustee (which shall include the statements set forth in
Section 12.5 hereof) stating that, in the opinion of the signers, all conditions precedent,
if any, provided for in this Indenture relating to the proposed action have been
complied with; and




     (2) an Opinion of Counsel in form and substance reasonably satisfactory to the
Trustee (which shall include the statements set forth in
Section 12.5 hereof) stating that, in the opinion of such counsel, all such conditions precedent
have been complied with.



     In any case where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be certified by, or covered by
the opinion of, only one such Person, or that they be so certified or covered by only one document,
but one such Person may certify or give an opinion as to such matters in one or several documents.



     Any certificate or opinion of an Officer of the Company or any Guarantor may be based, insofar
as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel,
unless such Officer knows, or in the exercise of reasonable care should know, that the



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certificate
or opinion or representations with respect to the matters upon which his certificate or opinion is
based are erroneous. Any such certificate or Opinion of Counsel may be based, and may state that
it is so based, insofar as it relates to factual matters, upon a certificate or opinion of, or
representations by, an Officer or Officers of the Company or such Guarantor stating that the
information with respect to such factual matters known to the Company or such Guarantor,
unless such counsel knows that the certificate or opinion or representations with respect to
such matters are erroneous.



     Where any Person is required to make, give or execute two or more applications, requests,
consents, certificates, statements, opinions or other instruments under this Indenture, they may,
but need not, be consolidated and form one instrument.



     Section 12.5. Statements Required in Certificate or Opinion. Each certificate or opinion with respect to compliance with a covenant or condition provided for
in this Indenture (except for the Certificate specified in Section 3.5) shall include:




     (1) a statement that the individual making such certificate or opinion has read
such covenant or condition;




     (2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such certificate or
opinion are based;




     (3) a statement that, in the opinion of such individual, he has made such
examination or investigation as is necessary to enable him to express an informed
opinion as to whether or not such covenant or condition has been complied with; and




     (4) a statement as to whether or not, in the opinion of such individual, such
covenant or condition has been complied with.



     Section 12.6. When Securities Disregarded. In determining whether the Holders of the required principal amount of Securities of any series
have concurred in any direction, waiver or consent, Securities owned by the Company or by any
Person directly or indirectly controlling or controlled by or under direct or indirect common
control with the Company shall be disregarded and deemed not to be outstanding, except that, for
the purpose of determining whether the Trustee shall be protected in relying on any such direction,
waiver or consent, only Securities which the Trustee knows are so owned shall be so disregarded.
Also, subject to the foregoing, only Securities outstanding at the time shall be considered in any
such determination.



     Section 12.7. Rules by Trustee, Paying Agent and Registrar. The Trustee may make reasonable rules for action by, or a meeting of, Holders. The Registrar
and the Paying Agent may make reasonable rules for their functions.



     Section 12.8. Legal Holidays. A “Legal Holiday” is a Saturday, a Sunday or other day on which commercial banking
institutions are authorized or required to be closed in New York, New York. If a payment date is a
Legal Holiday, payment shall be made on the next succeeding



54









 







day that is not a Legal Holiday,
and no interest shall accrue for the intervening period. If a regular record date is a Legal
Holiday, the record date shall not be affected.



     Section 12.9. GOVERNING LAW. THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK.



     Section 12.10. No Recourse Against Others. No director, manager, officer, employee, incorporator, member, partner, stockholder or other
owner of Capital Stock of the Company or any Guarantor, as such, will have any liability for any
obligations of the Company or any Guarantor under the Securities, this Indenture or the Security
Guarantees or for any claim based on, in respect of, or by reason of such obligations or their
creation. Each Holder of Securities by accepting a Security waives and releases all such
liability. The waiver and release are part of the consideration for issuance of the Securities.



     Section 12.11. Successors. All agreements of the Company in this Indenture and the Securities shall bind its successors.
All agreements of the Trustee in this Indenture shall bind its successors.



     Section 12.12. Multiple Originals. The parties may sign any number of copies of this Indenture. Each signed copy shall be an
original, but all of them together represent the same agreement. One signed copy is enough to
prove this Indenture.



     Section 12.13. Severability. In case any provision in this Indenture or in the Securities shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.



     Section 12.14. No Adverse Interpretation of Other Agreements. This Indenture may not be used to interpret any other indenture, loan or debt agreement of the
Company or any Subsidiary or any other Person. Any such indenture, loan or debt agreement may not
be used to interpret this Indenture or the Security Guarantees.



     Section 12.15. Table of Contents; Headings. The table of contents, cross-reference sheet and headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not intended to be considered a
part hereof and shall not modify or restrict any of the terms or provisions hereof.



55









 





     IN WITNESS WHEREOF, the parties have caused this Indenture to be duly executed as of
the date first written above.



	 	 	 	 	 
	 	DR PEPPER SNAPPLE GROUP, INC.

 	 
	 	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 
	 
	 	WELLS FARGO BANK, N.A., as Trustee

 	 
	 	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 
	 




56









 





ANNEX A




FORM OF NOTATION OF GUARANTEE




     Each of the Guarantors (which term includes any successor Person under the Indenture) has
fully, unconditionally and absolutely guaranteed, to the extent set forth in the Indenture and
subject to the provisions in the Indenture, the due and punctual payment of the principal of, and
premium, if any, and interest on the Securities and all other amounts due and payable under the
Indenture and the Securities by the Company.



     The obligations of the Guarantors to the Holders of Securities and to the Trustee pursuant to
the Securities Guarantee and the Indenture are expressly set forth in Article X of the
Indenture and reference is hereby made to the Indenture for the precise terms of the Securities
Guarantee.



	 	 	 	 	 
	 	[NAME OF GUARANTOR]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title: